
    
      DUFOUR vs. CAMFRANCQ.
    
    Pleadings in our practice, consisting only of the petition and answer, 
      pleas puis darein continuance are not known, but the party is to be protected from surprise, and in case of any new occurence allowed time.
    
      Appeal from the court of the first district.
    The defendant, on the 5th of April, 1810, purchased, at a sheriff’s sale, eight slaves, part of the estate of V. Dufour, deceased.
    
      When justice requires it a case is remanded for more ample proof.
    East’n District.
    
      June, 1820.
    On the 4th of September, 1817, the plaintiff, as heir, with the benefit of inventory, of V. Dufour, jointly with Mad. Lafitte, his sister, instituted the present suit, to claim the slaves and their hire.
    The defendant pleaded the general issue, and further, “ that he is the bona fide purchaser of the slaves claimed, at a sale made by the sheriff, on a judgment rendered, on the 2d of February, 1810, against the absent heirs of said V. Dufour, in the suit of Jean Laroque Turheau, acting by Carlier d’Outremer, as more fully appears by the deed of sale, executed by the sheriff.”
    On the 10th of August, 1818, pending the suit, the plaintiff received 1500 dollars from Carlier d’Outremer, (without expressing in what capacity) as a part of the proceeds of the sale of the slaves of the estate of V. Dufour, sold by the sheriff, eight of whom were purchased by the defendant : Carlier d’Outremer having received the proceeds of the sale, as agent or attorney of J. Laroque Turgeau, of whom the plaintiff is a legal heir for a part. Carlier d’Outremer, having given surety to refund the money received, on the appearance of the creditors of the estate of V. Dufour.
    During the trial, the defendant offered in evidence the records of two suits, in the superior court of the late territory, against the heirs or V. Dufour, in one of which he, the present defendant, was plaintiff; and in the other, J. Laroque Turgeau was plaintiff, the sheriff’s deed for the slaves by him bought, which were sold in pursuance of these two judgments, and the executions which issued thereon ; and a certified copy of the notarial receipt of the plaintiff to Carlier d’Outremer for 1500 dollars. The plaintiff’s counsel opposed the reading of these papers, except the deed of the sheriff to the defendant, and the objection being overruled, he took his bill of exceptions.
    There was judgment for the defendant, and the plaintiff appealed.
    The case was heard, in January last, and a decree pronounced, but a rehearing was granted, on the application of the plaintiff.
    
      Livingston for the plaintiff.
    The first point insisted on, by the defendant, is that, although he pleads a title by the sheriff’s deed on a judgment and execution at the suit of Laroque Turgeau, he may give in evidence a deed on a judgment and execution at the suit of Camfrancq and others, thereby exhibiting a direct variance between the allegata and probata, and that too in a case where of all others, the party has the least excuse for inaccuracy ; the case of a record to which he was himself a party. We have, it is true, no niceties of pleading, but we have one plain unbending rule, from which parties are never permitted to swerve : that they must set forth their case truly. The same precision being required from a defendant, who alledges a fact in avoidance of the plaintiff’s claim, that is required, from the plaintiff himself, in stating his case. And for the same reason, that the opposite party may not only be prepared to contest it, but also, that if it be illegal, irrelevant or otherwise improper, to be alledged, he may admit and demur to it.
    Here the plaintiff claims the slaves as heir of his brother, Victor Dufour ; the defendant says, though this be true, yet you cannot recover ; because the sheriff sold them to me, under a judgment and execution against the heirs of Victor Dufour, at the suit of Laroque Turgeau. These then were the points in issue : was there a judgment against the heirs of Victor Dufour obtained by Laroque Turgeau ? Was there a legal sale of these slaves under it ?
    The first question will be presently examined. On the second, it is held, that the sale produced is a legal sale, under that judgment, and was properly received as evidence, under the plea, with the explanation given by the production of the record, in the suit of Camfrancq, against the same defendants.
    I shall strive to convince the court, 1. that this position is untenable, and to make it out by argument and authority. 2. That the record in the suit of Camfrancq ought not to have been received to explain the sale : and that with, or without, the explanation, the sale produced ought not to have been received as evidence in the cause.
    I. The sheriff has no right to make any sale, except first by order of the court ; secondly in the manner prescribed by law. If either of them be wanting, the sheriff's sale is void, not voidable merely, but ipso facto void ; these positions seem too clear to be contradicted. The sheriff's sale is not an act emanating from his will, it does not stand by itself, as the act of any vendor ; it is an act done in obedience to the mandate of a court, and refers to the proceedings of which it is the complement. There must be a mandate, a judgment of the court ordering him to make the sale. If the sheriff sell at the suit of A. the proceedings may certainly be consulted to examine whether there be a judgment against the defendant, at the suit of A. This is not to explain, but to examine whether one of the two requisites for the validity of a sheriff’s sale, to wit, the judgment exists. And therefore, the plaintiff made no objection to the introduction of the record of the judgment and execution at the suit of Laroque Turgeau. But, when the defendant offered a judgment and execution (not at all pleaded) one at the suit of Camfrancq (the defendant himself) he objected to them, because they seem totally variant from the fact pleaded, viz. that he bought them under an execution, at the suit of Laroque Turgeau.
    It is suggested that this record was introduced to explain the sheriff’s deed. But a closer attention to the record will shew that this is not the case, and that if it was, it would be inadmissible. They plead a sale, at the suit of Laroque Turgeau ; they produce one at the suit of Camfrancq and others. Now, how could the introduction of the record, in the suit of Camfrancq, prove that the sale was as they alleged at the suit of Laroque Turgeau ? How could it explain that the one meant the other ? If it did so, it must go to contradict the deed, not to explain it : for when a deed says I sell in the suit of A. and B., any record, which goes to shew that he sold in the suit of C. and B., must contradict the deed, and contradict it in a most material part. Can it be intended, that the ambiguity arises from the words and others in the deed, and that the record ought to be admitted to prove who those others were ? If so, it would be a good reason for admitting the record in the suit of Laroque Turgeau, which we were willing to admit ; but it can be none for bringing in the record of Camfrancq ; because, that record shews what was sufficiently apparent from the sale, that Camfrancq was a party to the suit in which it was made. But, there is no ambiguity whatever in the sale : it states, as the law directs it should state the suit, in which the sale was made. One of Camfrancq and others (that is other plaintiffs in the same suit) against the heirs of Victor Dufour. It, therefore, required and could receive no explanation. It was clearly a sale different from that pleaded, and one to authorise which, no judgment was produced. Therefore, the record in the suit of Camfrancq, and the heirs of Victor Dufour, ought not to have been received as evidence.
    But it may be urged further, that neither this record, nor any ether evidence whatever, can be received to shew that a sheriff’s sale expressed to be in the suit of A. B. and others was really made, or intended to be made in the suit of C. D.
    
    The law organising the superior court, under which this sale was made, not only directs the mode in which sheriff’s sales shall be made, but prescribes the very form. When forms, in which an act is to be done, are prescribed by the law which authorises the act (and without which law, it could not be done at all) those forms must be pursued, or the act is void, for this plain reason, that the person doing the act having no authority to perform it but that which the law gives, can do nothing but what is delegated ; and the law which delegates it, doing so only on condition that he pursues the forms, the moment he departs from those forms, he breaks the condition and his power ceases.
    If a clerk be authorised to issue a writ for the arrest of a debtor, and a form of the writ be given, of which the plaintiff’s name and the sum form a part, could there be a doubt, that the arrest of a person where these were omitted would be illegal, and that the defendant would be discharged. Again, supposing two petitions filed by different plaintiffs A. and B. and one writ issued against the defendant, at the suit of A. and others, would it be permitted to explain this error, by shewing the different petitions ? And after they were shewn, could it cure the error ? It would appear not. The defendant would certainly be discharged, and the arrest declared void.
    So, in case an executor be authorised to sell real estate, with the approbation of the judge, and a form should be prescribed for the act of sale, in which that approbation is expressed, would a sale omitting it be good ?
    
    Again, if a guardian should be authorised to sell at auction, and a form of sale be given in which this circumstance is mentioned, can it be said that a sale without it would be good ?
    In the present instance, the authority of the sheriff was derived from the 15th section of the act regulating the practice of the inferior court, which directs “ that on any sale of land or slaves under execution, the sheriff shall deliver to the purchaser a conveyance in the form prescribed by the act for dividing the territory, &c.” 2 Martin’s Digest, 174. That form is set forth in the 10th section of the act referred to ? 2 Martin’s Digest, 334. And by it the sheriff is obliged to set forth the suit in which the execution issued, and under which the sale was made. He has done so,—he has declared that he seized the negroes by virtue of a writ of fieri facias ; not several writs : at the suit ; not suits in the plural, but at the suit of Camfrancq and others. Now, shall the party to this deed, the purchaser by this sale, be allowed to come in and shew that there was no such suit, in order afterwards, to prove by presumption, that “ Camfrancq” meant one suit, and others, meant another suit to wit, that of Laroque Turgeau. Would not this, independent of other objections, be doing that which is expressly forbidden by the code in the following provisions?
    “ The authentic act is full proof of the agreement contained in it, against the contracting parties, their heirs or assigns, unless it be declared and proved a forgery.” Civil Code, 304, art. 249.
    The agreement, contained in this act, is on the part of the sheriff, that he sells by virtue of a writ issued at the suit of Camfrancq and others. On the part of the purchaser, that he buys in a suit, where he jointly with others is a party. Whether this be true or false, may, as I shall presently shew, make a most material difference to the parties ; but if they have agreed to it, by an authentic act, it is full proof against them, unless it be declared a forgery. But, can it be full proof, if they are allowed, to bring other evidence to explain or contradict it?
    That this is an authentic act, is proved by the definition given of such act, Civil Code, 304, art. 217, and by the provisions of the act respecting sheriff’s sales.
    The argument on this article of the code, stands thus—The authentic act is full proof against the parties of what is agreed by it. This is an authentic act : therefore, it is full proof against the defendant, of what he agrees to in it. But, it was agreed by the act, that, the purchase was made under an execution in the suit of Camfrancq and others : therefore, the act, is full proof of that fact. But, full proof admits neither of explanation, or of contradiction, ex vi termini : therefore, no evidence ought to have been admitted to that end. If this reasoning be just, we cannot, without violating express law, receive any evidence explanatory or contradictory to the sale.
    Should it be said, that there is no express agreement, in the sale ; that it was made under the particular execution cited in it, and therefore is not full proof of any other fact than the sale. I reply by quoting the next article (220) “ an act whether authentic, or under private signature, is proof between the parties, even of what is there expressed only in enun
      
      ciative terms, provided the enunciation have a direct reference to the disposition.” Now, here there can be no doubt, that the enunciation of the execution, by virtue of which the sale was made, has a direct reference to the disposition, because without it, no disposition whatever could have been made.
    The next provision of the code, which forbids the introduction of the evidence, is the following. Neither shall parol evidence be admitted against, or beyond what is contained in the acts, nor what may have been said before, or at the time of making the said acts, or since. Civil Code, 310, art. 242. This might seem not to apply, inasmuch as the evidence offered, was written not parol : but it must be remarked, that the written evidence of itself, neither explains nor contradicts the sale. The sale says it was made in the cause of Camfrancq and others ; now the introduction of the records shews that there were two other suits, one of Laroque Turgeau, and the other of Camfrancq, but does not of itself, shew that there was no suit of Camfrancq and others. This fact is taken as one proved, and it is said “ if it is ascertained that no such case as that of Camfrancq and others vs. the estate of Dufour, is to be found among the records of the court, 
      but that there are other cases against that estate, in which these identical slaves were attached, and in which judgment was rendered and execution issued, why should not the sheriff’s sale be explained by a reference to these executions, judgments and proceedings ?” Now, how could it be proved but by parol testimony, that no such record existed ? But such parol testimony, even if any had been offered, is expressly forbidden by the article quoted. But, no such testimony either verbal or written was offered, or appears on the record.
    I have no fear that the want of this parol testimony (in itself inadmissible) will, in the opinion of the court, be supplied by the lighter testimony of presumption : and even, if that could be resorted to, it is difficult to discover on what it can be founded. For it is just as probable, that there were not, as that there were other suits ; unless, indeed, the recital in the sheriff’s deed should turn the scale of probability in favor of the existence of such a suit.
    On this head then, my argument is this : the law forbids the introduction of parol proof, to explain or contradict a deed. The evidence, introduced and excepted to, could only be made applicable (if it could at all) by the parol testimony. Therefore, the evidence was inadmissible.
    
      Again, the proposition is grounded upon the supposition of the existence of testimony, which is not in the record. “ If (they say) it is ascertained, that no such cause as Camfrancq and others, &c.” But it is not ascertained.
    On these grounds, it is respectfully submitted to the consideration of the court ; whether, the record in the cause of Camfrancq, and the heirs of Dufour, ought to have been admitted in evidence, to explain or contradict the enunciation, in the sale produced, that it was made at the suit of Camfrancq and others.
    II. But, explained or unexplained by the record, the sale in the case of Camfrancq and others, ought not to have been introduced in evidence ; because, it differs essentially from the sale set forth in the answer ; because, it is unsupported by the judgment ; because, if the explanation of the record be admitted, the sale must have been made, not at the suit of Laroque Turgeau, but at the suit of Camfrancq.
    1. It differs in essence from the sale pleaded ; that it differs is not denied, but it is said the difference is not material. But, what can be more material than the point of difference ; not only for the reasons urged in shewing that the record ought not to have been admitted, viz. that it differs from the form required by law ; but, for this further reason, that a sale might he valid, if made in one suit, that would be void in another ; that relief might be granted, against a purchaser in one suit, which would not be afforded in another. For instance, to go no further for illustration than the arguments used in this very cause. The sale, if made in the suit of Camfrancq, might be void ; but it might be valid by ratification (if we have ratified, it by receiving the money as the heir of Laroque Turgeau) should the sale have been made in that suit. We might obtain relief against Camfrancq as the purchaser under his own judgment, which (under circumstances) might be denied to us, if he were the innocent purchaser under the judgment of another. Again, the opposite party is enabled to examine the records, and discover whether there be fraud, error or nullity in the judgment, or whether there be any judgment to found the sale upon ; if the sale be truly set forth. But, how can he do that, if the defendant he allowed to plead a judgment at the suit of A. and to prove one at the suit of B. ? There may, for any thing that appears, have been a suit of Camfrancq against the heirs of Victor Dufour. That suit may have been conducted so as to make the proceedings a perfect nullity ; the heirs might not have been named, represented or summoned ; there may have been no judgment to warrant the execution ; no execution to warrant the sale. And yet, as a sale in that suit was not pleaded, the plaintiff was not only left without notice, but was misled. And the defendant, besides this, gained the manifest advantage of appearing not as the purchaser under his own judgment, but under that of Laroque Turgeau, when perhaps the proceedings in the one might be regular and void in the other.
    The decision of this court, in the case of Harvey vs. Fitzgerald, confirms fully my reasoning upon this head ; and expresses in forcible language the principles for which I here contend. “ Our laws (says the court) on the subject of the practice of courts in civil cases, contain provisions tending as much as possible to simplify it, and relieve us from all unnecessary technical rules, relating to special pleadings. But, parties in a suit are bound on the one side plainly and substantially to set forth the cause of action, and on the other, the means of defence. A denial of the facts stated in the petition, or a statement of other facts in avoidance of them. It is necessary to a fair administration of justice, that such certainty should prevail, as to put each party on his guard. The rule of law that requires that judgment should be rendered super allegata et probata, is founded on common sense, and principles of justice.” 6 Martin, 549. Now, with these principles to direct us, how can we say that a deed so totally and materially different from the one pleaded, ought to have been introduced in evidence ? The English law is not more precise than ours, on this subject ; it is founded on the same reason. I will, therefore, quote two or three out of many decisions in their books.
    1 Espinasse's Reports, 726. Brown vs. Jacobs. The record pleaded was in the name of Southall ; the record produced was in the name of Southall ; here, though the record was the same, lord Kenyon ruled that, as it was written evidence, it was bad.
    1 Terra Reports, 656. The variance was in the date of a return which being deemed material, the court held the variance to be fatal.
    In the United States, we find the same doctrine, wherever the variance is a material part. 4 Johnson, 456. 1 Cranch, 283. If the materiality of the variance be the ground of decision, what can be more material than that which exists in the present instance ?
    One therefore, of two things, either the judgments, if they are the true ones, are not recited, as they should be, in the sale, or there is no such judgment as is recited ; either of which is fatal. But, what shews beyond all manner of dispute, that the sale was not made under two executions, is the date of the docketting of the judgment, which, by law, is directed to be inserted in the deed, and which here is the 27th of January. Now, the two judgments produced were, as appears by the record, docketted on different days. Can a sale then, conveying all the estate which the defendant had on on one of those days, satisfy the statute, which directs that the day of docketting the judgment, shall be inserted both in the execution and sale ? The sheriff then, has complied with the law. He has recited a suit. He has inserted a day of docketting. But, there is no judgment produced in the cause recited, and of course, there can be no docketting of such judgment on the day specified. Therefore, for this reason also, the sale ought not to have been suffered to be read in evidence.
    3. If the records should be considered as good explanatory evidence, and are made to apply to the sale produced in this cause ; they shew directly the reverse of what they were introduced to shew, viz : that the sale was made at suit of Camfrancq, not, as pleaded, at the suit of Turgeau.
    1 The negroes sold under the sale, are principally those attached at the suit of Camfrancq : of the eight contained in the sale, only three, to wit : La Fleur, Victor and Jeudi, were attached at the suit of Laroque.
    2. The day of docketting, referred to in the execution and the deed, is the 27th of January, which agrees with the judgment of Camfrancq, but differs by many days from the docketting in the cause of Turgeau.
    3. As the sale is under a suit and recites one day of docketting, it is clear that only one suit was intended by the sale. And if (contrary, in my opinion, to the best rules of evidence) we are suffered to construe the deed contrary to its plain and clear import, and to substitute a suit not expressed, instead of one that is, to change the suit of Camfrancq and others for another ; what other shall we substitute? Shall we strike out Camfrancq altogether, and by changing the word others into Turgeau, make the deed speak what the defendant wishes ? If we must alter, will it not be easier to reject the words and others as surplusage ? But, what would be gained by this, though in itself, a most violent inroad on the rules of evidence ? When we had even gone thus far, the defendant would not be advanced in his cause, for , then the deed would stand as a sale made in the cause of Camfrancq, which was not pleaded, and therefore, could not be given in evidence, and then I pray the court again to remark, that the ratification, by receiving the money as heirs of Turgeau (inconclusive, as I shall shew it on other grounds to be) would totally fail.
    But the defendant seemed to think, that all difficulties would vanish, if they could persuade the court that the sales were made under both executions. For this, they have no foundation in the facts as they appear. They presume it first, because there are two executions, and only one sale. But, what proves that this is the only sale ? The presumption is against it. For ten slaves were attached in the two causes, and only seven of them are sold Frosine, one of the eight, not being included in either attachment ; and this, although the sum raised by this sale is not sufficient to satisfy the judgments. And the fact is otherwise : two suits being now pending for negroes purchased under one of these judgments.
    Secondly. They presume it, because they asserted that the negroes sold were the same with those attached in the suit of Turgeau ; but the assertion is incorrect, only three out of the eight having been so attached.
    There is neither proof or even presumption, that the sale was made under both executions ; but there is proof, that it was not. 1. The evidence of an authentic act, which declares the contrary in a manner unequivocal, unsusceptible of explanation, and repeated in the most important clauses of the act. 2. If it were not absurd to support by argument, full and conclusive proof, I would say, that the sheriff’s acts, when they appear, on the face of them, to be done according to the forms of law, shall not be explained by other evidence, or construed so as to make them illegal. Now, here, the law directs the sheriff, by the strongest implication, to proceed separately on each execution ; he is ordered to endorse the day and hour, on which he receives cash ; he must refer to the day of docketting, in the body of the sale ; he must recite the judgment, under which he sells, and all this for the strongest reasons of utility and justice, which would fail, if he was allowed to sell on several executions, at the same time, without distinguishing, in which the sale was made. It would be impossible, in that case, to distinguish against which of the plaintifs fs recourse must be had, in case of eviction, for want of title, which recour-e always existed and is still in force, tho’ somewhat restricted by the 20th sect. of the act of 28th of Jan. 1819, p. 40. If one execution were set aside for irregularity, the sale under all would be void ; where he sells on all, he cannot do the duty the law imposes on him, of holding the surplus money, if any, after paying the particular debts, to the use of the defendant; because no one can tell what that surplus is, on each execution, if the property he sold en masse, in each execution. With this positive law, against an indiscriminate sale, with these manifest inconveniences attending a breach of it ; the sheriff has returned under his oath of office, that he did sell in a single suit, that of Camfrancq and others. Shall prosumptions then, or even proofs, be admitted in a cause to which he is not a party to shew that he has acted illegally ?
    On this denomination of the suit, Camfrancq and others, permit me to remark. It is a known formula to describe a suit where there is more than one plaintiff; but never yet, I believe, was used to shew, that there were several suits. The title of a suit, is an index to find the proceeding in it, both on the records and minutes of the court. To express the name first used answers end, although the rest are not named, but are referred to, by the description “ others :” but, if this description were, in any proceedings, permitted to express other suits, by other plaintiffs, how could any proceeding he found ? In the case before the court, it would be impossible to discover, what other causes the sheriff meant, until we had examined, one by one, the many thousand titles of causes, on the clerk’s docket. Therefore, when the sheriff, or any other officer, uses this formula, it must be taken in its usual and legal acceptation, not in one that would create confusion, and always call for the aid of other proof to explain it.
    I conclude this long, and I fear tedious disquisition, on the admissibility, and effect of the testimony, by entreating the court, to consider whether them is any thing whatever, in the record before them, to shew by legal proof, that there was no such suit as that of Camfrancq and others. If there be not (and I can discover, not even a presumption of the kind) how can they say, that this sale was made at the suit of Laroque Turgeau, as pleaded. And if hereafter, the plaintiff should be able to shew, that there was such a suit, and that there was no judgment to support the execution, no citation to support the judgment, or no execution to support the sale. Would it not be manifest, that injustice and irreparable injustice had been done to him, and yet may not this be the case? What evidence is there that the records of the court have been searched ? What evidence that the two suits, mentioned in the record, are all that exist? No such evidence has been produced, for the fact is different; there were other suits, and any one of them may as well be substituted for the word “ others” as the suit of Turgeau. It will not surely be said, that we ought to have produced proof on this point. The defendant pleaded a title under the judgment against Turgeau. He ought to have produced that title, or if he relied on presumptions to supply it, it was for him to produce all the evidence which was to give weight to them. If the mere existence of such a suit as “ C, and others” was necessary to create a presumption that Laroque Turgeau was intended, it was for him, not for us to produce it.
    But, suppose no such judgment or suit to exist, so much the worse for the defendant. He was bound in the first instance, to look at his own title. He is, as I have shewn, bound by every thing enounced or declared in it ; and he, not the plaintiff, ought to suffer for the defects of his title. And he was bound afterwards, to plead his true defence, if he relied on shewing that this deed was not what it purported to be, and to have given us the means of defence.
    III. The plaintiff objected to the introduction of a notarial receipt, given by him to Carlier d’Outremer.
    Before examining the grounds of this exception, it will be necessary to examine the evidence on the record first, to shew that the money mentioned in this receipt, is by no means identified with that produced on the sale. It is only described as money deposited with C. d’Outremer, belonging to the estate of Laroque Turgeau, which had been enjoined in his hands by the defendant, and by Lafitte. Now, this might have been these monies, or it might have been other monies. The thing was susceptible of proof, and it was the defendant’s business ; if he thought the circumstance material, he could have produced it. It is not for the court to supply such material defects in testimony, by supposing it to be the same, because it was enjoined by the present defendant and Lafitte. Supposing this to be the case, might not this be another sum equally enjoined by these persons ? The receipt itself calls it “ part of a larger sum.” The plaintiff could not be prepared to shew this, because he had no notice, as I shall shew he ought to have had, of the production of this receipt.
    But, where is the evidence that the sum, for which the negroes was sold, was enjoined by Lafitte ? It was indeed, enjoined by the defendant in this suit. But, the sum received was not the sum for which the negroes were sold, because, that was enjoined only by the defendant ; whereas, the sum received was represented as being enjoined by both.
    Secondly. The case shews that this receipt was given during the pendency of the suit, long after it was at issue ; and therefore, was inadmissible.
    The enquiry on a trial only relates to the situation of the parties with respect to each other, at the time the suit was commenced ; or, on the broadest principles, to the time of the issue being joined. The plaintiff here declares, that, at the time of filing his petition, he was entitled to relief ; the defendant, in his answer, denies his right, and states special circumstances in avoidance. The issue joined there, is whether the party was entitled to relief at that period. Should any thing occur afterwards, to change the relation of the parties with respect to each other. If a release should be given, or a new title accrue to the defendant by succession or otherwise, that fact must be set forth by an amended answer, that the opposite party may have notice of the new fact relied upon.
    This is an acknowledged maxim in jurisprudence, and is founded on the strictest principles of justice. If the fact, relied on, had happened before the bringing of the suit, the defendant would undoubtedly have been obliged to set it forth in his answer, before he is permitted to adduce it in evidence : and what reason can there be, to exonerate him from giving this notice by an amended plea, if he allege that it happened afterwards. There is the same necessity for notice, the same or a greater danger of surprise, I say a greater, because, a party is naturally supposed to be better prepared with testimony to explain all his acts prior to the suit ; but cannot be supposed to provide against suggestions of what happened afterwards, unless he have notice. Here at the time of the suit brought, Turgeau was alive. The plaintiff could do no act as his heir to injure his claim. If any act of that kind was alleged to have been done during the pending of the suit, it ought to have been alleged, by an amended answer, and then the plaintiff might have disproved or explained it. The common law provides for this by a plea puis darreign continuance, and all codes of practice have similar.
    This is not like permitting what the parties have said, since the bringing of the suit, to go in evidence. This is done because it is proof, not of any change, but of their acknowledgment of the state of things previous to the suit. This case is widely different. It is a new act which, if true, changes the state of the parties, and which therefore, ought to have been set forth.
    In 1 Dallas, 65, it is stated and acknowledged as “ a principle not to receive evidence off any thing that happens after the suit,” though the acknowledgment, after the suit, of a fact existing before is good evidence.
    I enlarge no more on this point, because it is apparent that if the fact had happened before the suit brought, the defendant would not have been permitted to give it in evidence without pleading it, as it is a distinct fact, not arising out of the pleadings as they stand. That the plaintiff could not claim the negroes sold, because he was heir to the plaintiff in the suit, in which they were sold, and had, by receiving the money, ratified the sale—is as much a fact necessary to be pleaded, as the sale itself was. According to this principle, the court has decided in the case of the Planters’ Bank vs. George, that the agency of the persons who made the contract for the defendant, is not a circumstance to be submitted to a jury, because it was not specially set forth. Now, certainly that is a point much more readily to be inferred from the allegation, that the defendant made the agreement in that cause, than it is in this, that the plaintiff ratified the act of the sale, which ratification is no where set forth, or relied on in the pleadings. The record shews that this receipt is res inter alios and, therefore, ought not to have been admitted.
    IV. But suppose, the paper properly admitted, what does it prove : and what ought, in common justice, to be its effect on the cause?
    Let us concede, for the sake of argument, that the money, received by the plaintiff, was part of the proceeds of the negroes, which he now claims, and that it came into the hands of d’Outremer, as the agent of Turgeau, where it was attached on the bringing of this suit by the defendants ; Camfrancq and Lafitte, as guardians of the other heirs of Victor Dufour. He held it then, as a judicial deposit, to be returned to the purchaser of the negroes, if the sale should be declared void ; to be paid to Turgeau, if the sale should be affirmed. He was a mere stake holder, indifferent who should gain, and ready, on a proper indemnification, to deliver it to either. In this state of things, Turgeau dies. The plaintiff becomes entitled to a share of his estate, and a portion of his money, in case the sale of the negroes, which he has brought a suit to cancel, should be affirmed. Seeing the money lie idle in the hands of the depository, he tells him “ give me the money, if I lose my suit, it is mine of right, if I gain, I will give you security to refund it, that you may pay it, as the law directs, to the purchasers of the negroes, who have enjoined it in your hands.” This is done, and the receipt records this transaction and nothing more. It is a mere change of the deposit, but, so far from containing, as has been supposed, any acknowlegement or ratification of the sale, or any abandonment of the suit to cancel it which had been long pending, it expressly provides for the event of the plaintiff's gaining that suit, and gives security in that case to refund. If this were a ratification of the sale, to what end give security ? A simple receipt and discharge would have been sufficient ; it was clearly, therefore, not the intent of the plaintiff to ratify the sale and release his suit. It was not his intent to have the price and recover the thing sold. He has expressly declared, that this was not his intent ; he has expressly provided for that event (the recovery of the slaves) which the defendant says lie intended to abandon ; and he has expressly renounced the idea of keeping the price, in case he annulled the sale ; for he has not only consented, but given security, in that event, to repay it. To give the construction contended for on this transaction, would be to go counter to the intent of the parties, plainly and manifestly expressed in their deed. This appears so clear, so apparent, that I can only account for the view taken of it by the court, from its not being properly stated to them, that the injunction on this money, in the hands of C. d’Outremer, was laid by the defendant in this suit, when it was brought to secure him the repayment of his money in case the slaves should be recovered by the plaintiff ; but this appears by the record of the cause.
    If the money bad been in the hands of the court, instead of being deposited with d’Outremer, would it have injured the rights of any litigant party to take it out, furnishing, security to refund ? Surely, this is every day’s practice ; and how does it change the nature of this case, if any other person is the depositary ?
    Surely, if there be any thing uncertain in the wording of the receipt (which I cannot, however, perceive) it would neither be legal nor just to construe that into a relinquishment of a right of action, which could bear another and more obvious construction. If the original judgment would not have bound the plaintiff, independent of this receipt, then the receipt must be considered as a “recognitive or confirmative act” ; but, by the civil code, page 310, art. 238, such an act is only valid when it contains the substance of the voidable act that is confirmed, and the motive for confirming it, neither of which is combined in the receipt; therefore it cannot avail as a confirmation or recognition.
    Some stress seems to be laid on the receipt containing a discharge ; but connected with the plain state of the transaction, this can have no operation. It was necessary, if he lost his suit for the slaves ; for then he would keep the money ; but, as has been repeated, he agrees to refund it, if he prevailed in recovering them. If this be construed into a ratification of the sale, or into a discharge of his suit, no party will be safe in making deposits of the fund in litigation ; and every object must remain in sequestration, until the final decision of the cause. Should this be the true construction I can only lament the ignorance which considered it as a transaction, that could in no sort put his interests in danger, since he took care clearly to express his intent, and was not aware that, that intent could interfere with the prosecution of this suit.
    If, then, this paper be considered, according to its terms, a change of deposit only and not a ratification or release, the court then will proceed to examine the record, and should they even determine that the words “ Camfrancq and others” mean “ Laroque Turgeau ;” they will find that the property of the plaintiff has been taken from him in a suit :—
    1. When he was not named as is expressly required by law. 2. When he was not cited. 3. When no answer was filed for him, the only answer being filed, long before the nomination of any attorney. 4. When notice directed by law to be given in cases of attachment, by posting up the writ, was not given, and the only service being on the plaintiff himself. 5. When he was condemned unheard.
    But, if they find that the record cannot be construed in a manner directly contrary to its words, in addition to the above defects, they must be convinced that no judgment or writ of execution has been produced to justify the sale.
    But independent of all these grounds, and admitting all these arguments, proofs and authorities to be of no avail, why ought not the plaintiff to have judgment for the five negroes, viz : Baco, Levantine, Nanette, Susanne, and Frosine, neither of whom were attached, under the suit of Laroque Turgeau, under which the defendant alone claims?
    
      Moreau, for the defendant.
    The sheriff’s deed to the defendant must be considered by this court as legal evidence, as it was read in the court a quo, without any opposition from the plaintiff. But, the plaintiff’s counsel contends, that the defendant cannot avail himself of the record of the suit, in which he (the present defendant) was plaintiff against the heirs of V. Dufour, because in the answer, the slaves are stated to have been purchased at a sale made in pursuance of a judgment, in which Laroque Turgeau was plaintiff against these heirs.
    II. Justice would often be defeated, if defendants could, in their defence, be confined within the strict and narrow limits within which the plaintiff contends we are to be kept. Naturally, it behooves the plaintiff to prove his claim, when the defendant denies it. The latter ought to be discharged, if the former fails in this proof, and, as negative facts are not susceptible of proof, those who deny any allegation, in court, are dispensed from adducing any proof. Fart. 3, 1, 14, Ei incumbit probatic qui dicit, non qui negat. ff. 22, 2, 2. 3 Hulot, 248.
    The defendant might then confine himself to the general denial, in his answer; and under it, he would have been authorised to produce every document which he has offered, in order to destroy the plaintiff’s claim. Can the latter complain that the former has done too much, in adding to his general denial, a special allegation, of the right which he claims, under a sale made to him by the plaintiff, as one of the co-heirs of V. Dufour, on an execution obtained by these co-heirs ?
    Admitting, that the same strictness of proof, which is required from the plaintiff, is demanded of a defendant, who alleges a fact in his defence, because, he becomes so far a plaintiff, ff. 22, 3, 19, 3 Hulot, 252, let us examine whether this principle has been violated in this case. The courts of the English Common law, on the decision of which, the plaintiff relies, may have exacted a strict compliance with it, in regard to the special exceptions pleaded by either of the parties, and this court may have held that “our laws, or the subject of the practice of courts in civil cases, contain provisions tending, as much as possible to simplify it, and relieve us from all unnecessary technical rules, relating to special pleadings ; but, parties are bound, on the one side, plainly and substantially to set forth the cause of action, and on the other, the means of defence—a denial of the facts stated in the petition, or a statement of other facts, in avoidance of these. It is necessary to a firm administration of justice that, such a certainty should prevail in pleading, as to put each party on their guard.” Harvey vs. Fitzgerald, 6 Martin, 549. Nothing in this can affect our defence.
    Let us rejoice, that our courts are not bound down to the rigorous practice of the common law of England, which compelled lord Kenyon, in Brown vs. Jacobs, Espinasse, 26, to reject a record, offered in evidence, because the name of one of the parties was there spelt Southal, instead of Suthal. Our legislature has relieved us from so dreadful a situation, by providing that, “ the supreme court shall proceed and give judgment, according as the rights of the cause and matter in law shall appear unto them, without regarding any imperfection or want of form, in the process or cause of proceeding whatever.” 1 Martin’s Digest, 444, n. 9.
    If the irregularities of an act, in the course of proceeding, cannot be fatal and affect the justice of the case, will it be contended that an error in the defendant’s plea, may destroy his right, especially when it is clearly cured by the production of titles which he produces, and to which he referred the court in his answer, when a general denial would have sufficed ? That would be against both the spirit and the letter of the law, which we have cited. It is to be observed, that, the defendant was not satisfied with alleging in his answer, that he was a bona fide purchaser of the slaves claimed, at a sale, under a judgment against the heirs of V. Dufour, obtained by Laroque Turgeau, on the 2d of February, 1810, but did refer to the deed of sale, which he considered as his title, as more fully appears by the deed of the sheriff, of the first district of the superior court of the late territory of Orleans, on the 5th of April, 1810.
    
      The sheriff’s deed, then, constitutes a part of the defendant’s answer, and if he had annexed a copy of it thereto, no doubt could have been entertained of its being proper evidence at the trial. Will not a reference to the deed in the answer have the same effect ? Most certainly. Either party has a right, at any time before the trial, to a communication of any paper referred to in the record of the suit by his adversary, or to insist on his annexing a copy of it to the record. The plaintiff was then sufficiently informed of the defendant’s reliance on the sheriff’s deed ; he could not, therefore, oppose its introduction in evidence, and if he could, it is now too late for him to complain, since he did not except to its production in the court a quo.
    
    We are next to enquire whether this deed having been read in evidence, the defendant cannot avail himself of it in order to give the imperfection in the answer. His object in this suit is to resist the plaintiff’s claim to the slaves, as one of the heirs of V. Dufour, by shewing that he had acquired a title to them under an execution bottomed on the judgment obtained on the 2d of February, 1810, by Laroque Turgeau against these very heirs, and he refers to the deed given to him by the sheriff, on the 5th of April following, in which the slaves are named.
    
      This deed is evidently then the title on which the defendant relies. The circumstances, preceding or accompanying this sale, the judgments obtained by Laroque Turgeau and the defendant, the subsequent seizures, are only accessories or incidents, which are to have their explanation, and are to be corrected, if erroneous, by this deed.
    It purports that the sale is made to him, in pursuance to a writ of fieri facias commanding the sheriff to cause the money to be made, out of the goods and chattels, and lands and tenements of the heirs of Dufour, at the instance of Camfrancq and others. These expressions explain what the defendant means in the part of his answer, where he alleges the seizure of the slaves at the instance of Laroque Turgeou, altho’some of them, Baco, Laventine, Nanette and Susann, were adjudicated to him in a suit against the heirs, in which he was himself plaintiff.
    It is in vain contended that this would be to allow the defendant to prove what he did not allege. We answer that, in every case in which a reference is had to a deed, and through error its contents are incorrectly stated, the contents of the deed, not the statement of them, must be attended to.
    
      There is do contradiction between the allegations in the answer and the contents of the deed ; the first speak of slaves sold and seized at suit of Laroque Turgeau, and the latter at the suit of Carofrancq and others ; the former is less explicit than the latter.
    The record shews that the seizure was made, as well at the instance of the present defendant, as that of Laroque Turgeau, and it is clear that it is the latter the sheriff alludes to, in the words and others.
    
    III. The plaintiff’s counsel further contends, that the sheriff’s deed is null and void, because it does not mention the names of the parties to the suit ; because it mentions one writ of fieri facias, and one judgment only; because it appears the sale took place under Camfrancq’s judgment only ; and, lastly, on account of the identity of the slaves seized and sold at Camfrancq’s instance, with those seized at Laroque Turgeau’s.
    
      1. The form of the deed, which is to be given by the sheriff to purchasers of property, sold under a writ of fieri facias, is prescribed by the legislature. 2 Martin’s Digest, 334. The preamble is in these words : “ Whereas I, A. B. sheriff of the county of ——, by virtue of a writ of fieri facias, to me directed, against the goods and chattels, lands and tenements of C. D. at the suit of E. F. &c.”
    Is the deed void, if the names of the parties be omitted ? The 14th section, of the act of 1805, provides that the sheriff’s sale, whether of real or personal estate, shall vest in the purchaser all the estate, right and title of the person against whom such execution is issued. Idem, 172. It is only in the following section, that the form of the deed, to be given after the sale, is mentioned. It is by the sale, of which the deed is only an evidence, that the property is transferred.
    It suffices then, that this evidence of the sale be written or subscribed, by the officer, who is directed to give it. All the particulars, which are mentioned in the law, are not of the essence of the deed. It would be highly injurious to the fortunes and destructive of the rights of individuals, if the least omission in a deed, rendered it null and void.
    It is not true, that all the forms, which the law prescribes, are so rigorously imposed, that the least omission or deviation, avoids a deed. The 18th title of the third partida, is full of forms of different acts ; but, it has never been held that acts, in which the notaries do not literally use these forms, are void. It is true, prohibitive laws import a nullity, although it be not formally expressed. Code Civil, 4, art. 12. It is otherwise with laws purely imperative. They must denounce the nullity, and the infraction, on which it is pronounced, must attack the essence of the act. 1 Jurisp. du Code Napoleon, 67. It is always difficult to distinguish vices, which attack the substance of the act, from mere irregularities. This requires often all the sagacity of an enlightened judge, whose intelligence and learning are a necessary supplement to the law. Idem.
    
    If the court, then, has a discretion to exercise, can we doubt that it will not consider the alleged omission, as relating to the substance or essence of the deed, but, as an irregularity, which may be remedied by a reference to the records introduced. The only imperfection being the want of a direct reference, to more than one fieri facias, and the omission of the name of Laroque Turgeau, who is evidently designated under the words and others.
    
    2. Two writs of fieri facias were clearly referred to by the sheriff. We produce the records of two distinct suits, one in which Camfrancq alone, was plaintiff, and another in which Laroque Turgeau was.
    
      There was no suit in which Camfrancq was a joint plaintiff with one or more others.
    It is true, the law forbids the introduction of parol evidence beyond, or against the contents of an act. But, it is not by witnesses, that we have sought to prove that the sheriff erred, when in his deed, he referred to a single writ of fieri facias, in the suit of Camfrancq and others. We have shewn by records, that he meant to refer to two writs, issued in two different suits ; one in which Camfrancq was plaintiff, and another in which another person, viz. Laroque Turgeau, was so.
    Nothing prevents evidence being received beyond or against the contents of an act, or of what was done before, at the time, or since its confection, as in the case of a counter letter, in the case of a simulated contract; provided, the evidence result from an act, in which the parties intervened.
    3. The same answer may be given to the allegation, that one judgment only is mentioned.
    4. Although, five of the slaves, purchased by the defendant, are part of those whom he had seized, it does not follow that the seizure, at his instance, was alone acted upon. It appears, and the plaintiff admits, that three of the slaves sold to the defendant, had been seized at the suit of Laroque Turgeau, viz. Lafleur, Victor and Jeudi, and the sheriff could not give a title in them to the defendant, had they not been seized in the latter suit. Besides, Camfrancq’s claim amounting only to $974 75, the five slaves seized in his suit, were more than sufficient to cover it. Laroque Turgeau’s claim amounted, according to the record, to 3494 dollars. What puts the fact, of there being two writs of execution, beyond a doubt, is that the sheriff sold eight slaves to Camfrancq for 4040 dollars, while the claim of the latter was below a fourth of that sum.
    5. It is not easy to discover on what ground the plaintiff assumes it as a fact, that the slaves seized by Camfrancq and Laroque Turgeau, have not been seized and sold, but that others were sold in their stead.
    IV. The notarial receipts, given by the plaintiff to Carlier d’Outremer, on the 10th of August, 1818, for $1560, was properly admitted in evidence.
    1. This document establishes that the money, thus paid to the plaintiff, was received by him,as part of the proceeds of the slaves, seized as part of the estate of V. Dufour by the present defendant and Laroque Turgeau.
    
      The plaintiff acknowledges the receipt of $1560 part of a larger sum, belonging to the estate of Laroque Turgeau, of which Carlier d’Outremer is depositary ; and engages that, as there are seizures and oppositions, in the name of Camfrancq and Lafitte, of Jamaica, the plaintiff promises to refund the sum received, if the claims of these persons prevail ; and he gives surety therefor.
    The record shews that the sum in the hands of Carlier d’Outremer, and of which the plaintiff received a part, was the proceeds of Laroque Turgeau’s claim, on the estate of V. Dufour, part of which had been levied on his absent heirs. For this claim, the slaves Scapin, Lafleur, Jeudy, Victor and Dupont, had been seized ; and on the 2d of February, 1810, Laroque Turgeau had judgment for $6051 30 on which that of 3494 58 was levied. It likewise appears, that Laroque Turgeau obtained this money, on condition of his giving Security to refund it, if Lafitte, who had intervened in the suit, established his claim on the estate of V. Dufour, and the court determined that the creditors of the deceased were to be paid by contribution ; a security which was given by Carlier d’Outremer, agent of Laroque Turgeau, on the 24th of April, 1810.
    
      Lastly, the record shews that on the 6th of March, 1818, the defendant obtained an injunction, by which Carlier d’Outremer was inhibited from disposing, on any account, of the $3494 50 which he had received on the seizure made by Laroque Turgeau ; in contempt of which Cartier d’Outremer, on the 10th of August, 1818, paid 1560 dollars to the plaintiff.
    A comparison of all these facts must create a conviction, that these 1560 dollars are a part of the 3494 50. It is true that, originally, Carlier d’Outremer was not strictly, what is deemed in law, a depositary of the proceeds of the seizure of Laroque Turgeau, on the estate of V. Dufour ; but held them as the agent of the former. But the injunction obtained, by the defendant, renders him a depositary, since it commanded him to hold these proceeds at the order and disposal of the court. The payment, which he afterwards made to the plaintiff, on his giving security to refund, cannot have changed his character of depositary.
    2. But it is contended, that the defendant cannot avail himself of this payment, which was posterior to the institution of this suit ; because he has not pleaded it. This is a vain effort to introduce in our tribunals the strictness of the common law of England, which I think will prove abortive.
    
      In civil law courts, the defendant is not bound to allege his exceptions, whether they result from facts anterior or posterior to the inception of the suit. Part. 3, 14, 1. Harvey vs. Fitzgerald, 6 Martin, 549. See on this point, the argument of the counsel for the defendant, in the case of Nagel vs. Mignot, 7 Martin, 657.
    
    3. It is further urged that the plaintiff’s receipt to Carlier d’Outremer cannot be used by the defendant, it being res inter alios acta.
    
    When a succession is opened, the acts by which the person, entitled thereto, may accept or decline it, cannot be considered as indifferent to the creditors of it. They may avail themselves of his acceptance of it, whether it be evidenced by a formal act before a notary, out of their presence, or by any instrument, in which the party acted as heir. Civil Code, 77, art. 163. If, in the receipt to Carlier d’Outremer, the plaintiff had styled himself heir to Laroque Turgeau, the defendant could, undoubtedly, avail himself of the evidence resulting therefrom, that he had accepted the succession. If the same evidence result from a fact, of which this receipt is a proof, he may have the benefit of it.
    V. The plaintiff has confirmed the sale of the negroes, purchased by the defendant, by receiving his share or the price.
    Whether the proceeds of the sale were deposited in court, or remained in the hands of a third person, on account of the seizure and opposition made by the creditors of Laroque Turgeau, any act by which he, or his heir, accepts or receives these proceeds, must, in law, be considered as a confirmation of the sale. In default of an act of confirmation or ratification, it is sufficient that the obligation be voluntarily executed, subsequent to the period at which the obligation could have been validly confirmed or ratified. Civil Code, 310, art. 238. To execute a convention, even in part, is to approve it. 10 Pandectes Francaises, 330, n. 226.
    The obligations, resulting from the contracts of sale, are chiefly the delivery of the thing and the payment of the price.
    The acceptance of the price, in whole, or in part, even in the case of a sale, made during the minority of the vendor, if the price be paid after his coming of age, is a confirmation of the sale. 3 Merlin, Decisions de droit, 440, 445, verbo Mineur, where a decree of the court of cassation of the 4th of Thermidor, 4th year, is cited.
    The circumstance, of the plaintiff having given security to refund, does not alter the case. This was a business absolutely personal to Carlier d’Outremer and the plaintiff. The former having himself given security, before he received the money, naturally required it, when he emptied his hands of it. Another consideration, which induced it to be required, is that he had been enjoined from paying the money.
    All that we want, to shew that the plaintiff confirmed the sale, is that he did an act which is evidence of his assent to the sale having its effect. Now, his receipt of the money is such an act. He could not intend to have both the slaves and their price.
    Now, if the plaintiff, by receiving the price, would be prevented from ever disturbing the vendees of these slaves, had they been illegally sold, during his minority, a fortiori, must the vendees be confirmed in their titles, by the receipt of the price, while the sale was made during the majority of Laroque Turgeau, and the plaintiff, one of his heirs.
    Lastly, the effect of the receipt, given by the plaintiff, must be precisely the same as that of such a document, under the hand of Laroque Turgeau himself. It is true, the receipt does not expressly shew that the plaintiff gave it as one of the heirs. It is shewn that he is the next of kin, and he does not shew that he has any other title to the money, than as heir to Laroque Turgeau. The consequence must be, that he received the money in the capacity, which gave him a right thereto.
    By receiving this money, the plaintiff accepted the succession of Laroque Turgeau.
    The acceptance of a succession is express or tacit. It is tacit, when some act is done by which the intention of being heir must, necessarily be supposed. Civil Code, 162, art. 77. From what act may this intention be more correctly presumed, than the receipt of a sum of money belonging to the estate, with the view of applying it to one’s own use. If one, who has capacity to inherit, takes the goods of a succession, or part thereof, he does thereby the act of an heir, 1 Pothier, Succession, 183 ; and this, even when the party takes the goods in some other capacity than that of an heir ; as for example as creditor, or legatee, unless he alleges and proves that, in the latter capacity, he had a right to take the goods. If one of the next of kin, be likewise a creditor or legatee, his taking goods will be the act of a kin, and be construed as an acceptance of the succession ; for, as a creditor, or legatee, he had no right to take, of his own authority, what was due or bequeathed to him but only to demand it of the heir. Idem, 185.
    VII. Lastly, the plaintiff urges he is not to be concluded by the record, because he was not expressly named in the petition ; because he was not regularly cited, and did not answer ; because no notice of the attachment was posted up, and he was condemned unheard.
    1. The act of the legislature, which requires that the names of the parties be inserted in the petition, 2 Martin’s Digest, 149, must be understood only in regard to cases in which inhabitants of the state are personally sued ; not to those in which the plaintiff proceeds by attachment and in rem, against absentees ; the names of whom, especially in the cases of heirs, are unknown. Where it otherwise it would be impossible to obtain a debt due from a vacant estate. In such a case, it ought to suffice, that the curator or the defensor, appointed to absent heirs, be named. Such has been the constant practice of our court and it is conformable to that of Spanish tribunals. Ayora, de partitionbus, 87, n. 16 and 17.
    2. This author, loco citato, observes, that in order that what is done by the curator of an absentee be valid, it is needful that the absentee cited, at his domicil or by publication ; otherwise curators cannot be given to absentees,so that they be concluded by their acts, according to Baldus, &c. But, this rule is not observed in practice, and judges are in the habit, after satisfying themselves of the absence of the heir, or having caused an information to be made, to appoint a defensor to the absentee, without a previous citation, which I take to be regular and to suffice.
    3. In the case of Laroque Turgeau against the heirs of V. Dufour, J. B. Prevost was appointed defensor of the heirs, on the 27th of January, 1810, and the only answer is that of Lafitte, in the name of his minor children, subscribed by Moreau Lislet, and J. B. Prevost, which bears date of the 6th of February, 1809.
    In the case of Camfrancq, against the same heirs, Paillette was appointed defensor of the assentees, at the moment of trial, as appears from the judgment rendered on the of January, 1810, and there is no other answer than the one filed by the same attorney, Paillette, for the minor children of Lafitte, heirs of V. Dufour.
    It is, therefore, to be presumed, in the first suit, that Prevost did not subscribe the answer filed by Moreau Lislet, till after his appointment as defensor of the absent heirs, as an evidence of his adherence, in their behalf, to the answer filed by Moreau Lislet, for the other heirs.
    Admitting, however, that no answer was ever filed for the present plaintiff, in either of these two cases, as one of the coheirs of V. Dufour, by the defensor appointed to him by the court, could he, on account of this omission, demand the reversal of the judgments rendered in these two suits in the year 1810, while he did not bring his action for the recovery of the slaves, sold in pursuance of the judgments obtained, in these suits, till the 11th of September, 1817? For, whatever defects may exist in the proceedings, which preceded these judgments, while they remain unreversed, they are an insurmountable obstacle to his recovery ; for, as to him, they are res judicatœ.
    
    It is then necessary to inquire, whether, according to our present jurisprudence, a party, who has not appealed from a judgment rendered against him, may attack it as null, and if so, within what time, in what manner, and in what cases he, may avail himself of its nullity.
    Under the Spanish system, a party, who had not appealed within the legal delay from a judgment, might obtain its reversal when there were radical defects in the proceedings. These are defined in Part. 3, 6. Cur. Ph. 97, n. 12 and 13.
    It is doubtful, whether this action of nullity, which was brought before the court who rendered the judgment, may be now resorted to. Meeker’s ass. vs. Williamson’s syndics, 4 Martin, 625. Our statute seems not to afford any means of reversing a judgment, but the appeal within the legal delay.
    Admitting, however, that this action of nullity may be resorted to, it is not every error that will avail : some are perpetual, others temporary only, in their effects. The action of nullity is perpetual, in case of the want of citation of the party, or of jurisdiction in the court. In all other cases, except that of a judgment rendered on forged documents, false testimony, or through the corruption of the judge, in which relief may be had during twenty years, the judgment must be attacked within seventy days, after its notification to the party. Cur. Phil. loco citato. The plaintiff, therefore, could not be admitted to demand the reversal of these judgments.
    The want of a contestatio litis, will likewise be urged, on the ground that the defensor, appointed by the court, has not answered in his (the present plaintiff’s) name. To this, we answer that, he cannot be permitted to plead any kind of nullity, perpetual or temporary, while he has not directly attacked these judgments. No one can avail himself of the nullity of a judgment by exception or plea ; it must be done by action. Cur. Phil. loco citato, n. 15.
    Further, even radical nullities, such as a want of citation or even of jurisdiction, may be cured, by the appearance and answer of the party. It is true, the law provides, that “ judges shall not give judgment, in any case, except those of appeal, unless the suit be commenced by petition and answer ; and if they do so, the judgment shall be null.” Part. 3, 16, 5. But, in practice, the want of the citation is cured, when the party voluntarily appears and defends himself.
    “ The plaintiff ought to give a copy of his petition to the defendant, and cause him to be cited, &c. The citation is the beginning, the root, and essential foundation of the proceedings, and is every where considered as indispensable for the defence of the defendant, and cannot be dispensed with : if it be omitted, the judgment is null ; unless the defendant appears in person, or by attorney, before he be cited, for then the citation is superfluous.” Febrero, Juicio ordinario, n. 129
    
    The want of an answer, ought not to be more fatal than that of a citation. If the present plaintiff had appeared personally, or by attorney, in these suits, and omitted to file an answer, but it appeared that his attorney had attended, and defended him at the trial, so as to render the judgment rendered therein, contradictory, reason and equity would reject his claim for a reversal of it, on account of the absence of a written answer. The consequence must be the same, since he was represented by a defensor, and, according to Ayora, every thing done by, or against the defensor of an absentee, is as valid as if done by, or against him.
    4. The statute requires the posting up of the notice, in case of attachment, in regard to these absentees only, who have resided in the state, since it must be at the last place of abode of the defendant. 1 Martin’s Digest, 514. No provision being made in case of an absentee, who never resided in the state, we must resort to the practice, which existed before the statute. Ayora informs us, that judges do not usually order absentees to be cited by notices or proclamations, edictos, but appoint to them a defensor immediately, to whom the different acts, in the proceedings are, notified : ante 285.
    
    5. The present plaintiff cannot complain that he was not defended in these suits. It is true, there is not any written answer filed expressly in his name, in either of them : but his defensor filed written answers, in the name of the minors, Lafitte, who as coheirs with him of V. Dufour had the sames interest.
    In the suit of Camfraucq vs. the heirs of Dufour, Paillette, the attorney who appeared for the minors Lafitte, and had filed an answer for them, was appointed defensor of the other coheirs, and therefore of the present plaintiff, on the 24th of June, 1810, the very day on which the trial took place, and it cannot be said that the latter was condemned unheard, since the attorney, appointed his defensor, argued the cause. In the other case, Prevost was appointed defensor of the absent heirs, and subscribed the answer, filed by Moreau Lislet, for the minors Lafitte, and afterwards moved for a new trial, and after for a suspension of the execution.
    The present plaintiff cannot, therefore, say that he was not heard.
    
      Seghers, on the same side. It is admitted that the plaintiff is one of the coheirs of V. Dufour, for one half, and of Laroque Turgeau for a smaller part. This appears by the statement of facts.
    The plaintiff’s counsel states, that Laroque Turgeau was alive at the inception of the suit ; but died after Carlier d’Outremer was enjoined, on the application of the defendant, to pay the money in his hands, ante 264. This is an error of fact, which it is important to correct. The suit was instituted, on the 4th of March, 1817, and Laroque Turgeau died, in Kingston, Jamaica, on the 8th of January, 1815. The counsel stated it so, in the district court : but the date of his death was not noticed in the statement of facts : at all events, as there is no legal proof of this, no argument can be correctly drawn from it.
    It is urged that it does not apoear, from any thing on the record of this suit, that there was no suit, in the late superior court, brought by Camfrancq and others, against the heirs of V. Dufour, &c. We answer, that a negative is not susceptible of proof ; that we have indicated, in our answer, the date of the deed of sale of the sheriff, and of the judgment, on which the execution issued ; that, according to the provisions of the law, there is kept a register of all sales made by the sheriff, in the clerk’s office, and another in which all judgments are docketted in chronological order ; that the sheriff is also required, by law, to keep a book, in which he enters all sales, made by him, mentioning the date, the thing sold, the name of the purchaser and the price, which book is open to public inspection. Act of 1805, April 10. The plaintiff was, therefore enabled by the dates stated in the defendant’s answer, to obtain any information which he might desire, to guard against surprise.
    If a suit of Camfranq and others, vs. the heirs of Dufour existed, the party, whom it could avail, could easily have produced the record of it. It must, have been easily found, as it could only have existed in the short period of a year, which elapsed between the death of V. Dufour, and the date of the sheriff’s deed. A very short time would have been sufficient to run over the list of causes during that time, and a much shorter one to ascertain the fact by a reference to the index kept by the clerk. The very great pains taken by the plaintiff's counsel, in this case, leave no doubt that so victorious a mean of attack, would not have been overlooked, had it existed.
    The act of 1805 provides, that every sheriff shall keep a just and true account of all sales. by him made, in a book, to be kept for that pur-
    pose, in which shall be entered the date, the articles sold, the name of the purchaser and the price paid, which shall be kept open for the inspection of any person, demanding the same. And such a sale, whether of personal or real estate, shall vest in the purchaser all the estate, right and title of the person against whom such execution issued. 2 Martin’s Digest, 172, and it is in the following section only, that a deed to be given by the sheriff, is spoken of. The defendant’s title to the slaves he purchased was then perfect, immediately after the sale, and its registry in the sheriff’s sale.
    These books then, as well as the records of the two suits were proper evidence, by which any inaccuracy, that might have occurred in the confection of the deed, would have been corrected. They were introduced in the two suits, brought by the present plaintiff, against Dussuau de la Croix, to recover three slaves sold by the sheriff, by virtue of the executions under which, those claimed by the present defendant, were purchased. These two cases are now pending before this court.
    It is further urged, that “ ten slaves were attached in the two causes, and only seven of them sold ; Frosine, one of the eight, not being included in either attachment.” The three others were sold, under the same writs of execution, and on the same day, to Dussuau de la Croix, against whom the present plaintiff carries on suits, now pending before this court. As to Frosine, she was a child of tender years, her name might have been omitted on the return, as she could not be separated from her mother. It suffices, that she was purchased by the defendant, under the same fi fa.
    
    Finally, the plaintiff’s counsel contends, that the sheriff cannot have intended to refer to two distinct suits, by the words Camfrancq and others, because the law requires him to refer to the judgment, on which he sells, and to state the date of its registry ; and hence, when he has several writs of execution, he cannot seize and sell property en masse. We, however, see daily in the newspapers, the sheriff advertising property for sale, as seized under several writs of execution.
    
      Livingston, for the plaintiff.
    We are told that the plaintiff cannot now say, that the sale produced by Camfrancq, ought not to have, been received in proof, because, in the numbers by which the several proofs are referred to in the bill of exceptions, the one, corresponding to this paper, is omitted. This is evidently, a clerical mistake, because the judgment of Camfrancq, being contained in the bill of exceptions, because it was different from the one pleaded, how is it possible to suppose, that the same counsel could consent that a sale under a third judgment to wit, Camfrancq and others, could have been introduced ? But, the defendant wants some advantage ; let him take all that his carelessness or mistake, will give him, (but he must excuse me, if I observe, en passant, that this statement but ill agrees with the latitude of practice, which, as he contends, will permit him to plead one thing and prove another.) Let him have his advantage : what will it avail him ? If I am sued on a note of hand, and I make no objection to their giving evidence of an assault and battery, can they obtain judgment ? Or, if they obtain it, will it not be reversed ? Thus, if the sale, he produces in evidence, is not conformable to the one he has pleaded ; or, is not supported by a judgment, my omitting to except to its introduction, or my expressly agreeing to receive it, will avail him little, in support of his judgment. The force of this is felt by the defendant’s counsel, and he exerts all his strength to prove, that although the terms of the sale produced are acknowledged to be in contradiction to the one pleaded, that this is immaterial. Let us follow him, in this attempt.
    First, we are told that justice would frequently be defeated, if such strictness were observed ; the answer to this general objection, has been anticipated in the plaintiff’s argument, and in doing it, he has borrowed the explicit language of the court itself, in former decisions. But, we are told, however proper this might be, as applied to the pleadings of the plaintiff, they are not so with respect to those of the defendant : because, the plaintiff must prove his right, but the defendant may restrain himself to a simple denegation. But, when the defendant alleges a fact in avoidance, I should be glad to know, whether justice does not require the same certainty, in the exposition of the fact, as if it was one alleged on the part of the plaintiff.
    The defendant seems to think, that such deregation is always sufficient, to enable, the defendant to prove any thing, which would destroy the plaintiff’s action ; and that here, as he was under no necessity to plead the sale, his pleading it erroneously cannot injure him. I apprehend, this is one of the few errors into which the learned counsel is ever led.
    When the plaintiff alleges, and proves a complete title, which would entitle him to recover prima facie, and the defendant relies on an act, which destroys that right (not proceeding from the plaintiff himself) then he is bound to give notice of such act by his answer. I have said, not proceeding from the party himself, in order to avoid a collision with what seems to have been the opinion of this court, on a former occasion, that payment might be given in evidence, under a general denial. If that point were necessary to be argued here, I should, however, contend that in that case also, it ought to be alleged as well as proved ; but this is not necessary here.
    In this case, the plaintiff proves property by shewing that the negroes belonged to Victor Dufor, and that he is his heir. These facts are not disputed ; but a totally distinct one is set up to defeat the action, one proceeding neither from Victor Dufour nor the plaintiff ; an alienation by the operation of law. If this be a fact, which might have been proved under a general denial of the plaintiff’s right, I know of none that requires a particular specification. How could the plaintiff know of this sale, unless he was apprised of it by the answer. How could he be prepared to shew irregularity, the want of identity, fraud, or any other fact, that might exist to avoid such a sale, if he was to be surprised by hearing it for the first time on the trial ?
    The defendant, then, in this case, was obliged by every rule of justice and law, on the subject, to set forth the sale under which he claimed, and if obliged to set it forth, to state it truly and exactly.
    But, he was in a dilemma : he knew, that he had an irregular, and if irregular (in a case like the present) a bad title ; he knew, then, there was no such judgment or execution as was wanted in his sale, there was neither judgment nor execution in the case of Camfrancq and others ; yet his sale was in that suit. What was he to do ? Plead his sale truly ? Say that he bought at the suit of C. and others ? That would not do. The plaintiff would ask for the judgment that could warrant the sale ; he would have time to examine and detect the irregularity ; therefore, it would not do to plead the sale truly ; it was safer, he thought, to plead a sale under a judgment which did exist, and endeavor under it, to introduce his irregular sale, in the hope that the variance would not have been observed ;—but I have digressed a little. To return to my reply, I think it has been shewn that there was a necessity to plead the sale, under which the defendant claimed, and, as a corrollary, to plead it truly. And I shall refer the court to my original argument, to shew that has not been done, and that the variance is material and fatal.
    
    The next argument is that, the sheriff's sale transfers the property, independent of the act of sale ; that the act of sale, is only the evidence of the sale, and provided this be reduced to writing, and signed by the officer, it is no matter in what terms it may be couched.
    This doctrine may be very sound, but I own that neither my studies, nor my practice, have ever taught me any thing like it. I always thought that, when the law directed an act to be done by one of its officers, prescribed the manner in which he should do it, and declared what should be the evidence of his having performed it, that the evidence thus required was the only evidence. And, I moreover thought, that this principle would be most strictly enforced, in a case where property was to be transferred without the consent of the owner. I supposed, that so far from being a mere matter of form, the act of sale, on the execution, was of the essence of the transaction ; and that when the lawgiver took the trouble to prescribe a form for the officer, that something was meant by the direction ; if the defendant’s reasoning be true, there is no necessity for an act of sale at all ; if the adjudication gives the property, of what use is the act of sale ?
    But is there not a kind of solecism, in telling us, the act of sale, signed by the sheriff, is the evidence, required by the law, that the thing was sold, but yet that sale may be shewn, without the evidence of it. It is true, the defendant adds, that, provided it be reduced to writing and signed, it is sufficient ; but if his first principle be true, if the sale is complete, without the evidence of it, where is the necessity for reducing to writing or signing at all ; the general law, respecting sales of real property, would not render it necessary, in case of special provision as this is, and, on the defendant’s reasoning, judicial sales might always be proven by oral testimony, carrying with it, this absurdity, that this act of a third person, conveying my property, may be proved by parol, against me, but that, for my own acts, there must be written proof.
    The defendant pronounces rather too emphatically, that it is false to say, that when the law describes forms, they must be stricly pursued, under pain of nullity, &c. Whether this general doctrine be true or false, would seem to be perfectly immaterial, in the defendant’s answer to my argument, because, no such doctrine can be found there. If the court have not forgotten my argument, they will recollect, that I contended, “ that when forms, in which an act is to be done, are prescribed by the law, which authorises such act (and without which law it could not be done at all) then those forms must be pursued, or the act is void ; for this plain reason, that the person doing the act, having no authority to perform it, but that which the law gives him, can do nothing but what is so delegated, and the law, which delegates it, doing so, only on condition that he pursues the form, the moment he departs from these forms he breaks the condition and his power ceases, &c. I exemplify and illustrate this by several cases and some other reasoning Now, instead of answering this, the defendant has found it much more convenient to impute to me the general and broad assertion that, when the law prescribes forms, they must be observed in all cases under pain of nullity, without attending to the manifest distinction, I had broadly, and, I thought, intelligibly drawn, between cases where the act might have been legally done before the law prescribing the form, in which case, there would be nullity only in case of prohibitive terms being used in the law, and cases where the act could not have been done, but in virtue of the law which prescribed the form. If the defendant’s counsel had attended to that part of my argument, he would have found that his argument, drawn from the forms prescribed by the laws of the partidas, is of little force ; because it applies to nothing I had said.
    I could not, without a tedious, and, I think, a very useless repetition of my former arguments, reply to that part of the defendant’s argument, on the variance and defects of the sale.
    I will only observe, for regularity in argument, that I do not think the reference to other suits, not made evidence in this, is admissible, merely because they happen to be before the court at the same time. If this were admitted, evidence that could not be received in a cause might be brought before the court, because it was received in another.
    I make the same excuse for not replying to that part of the answer relating to the admissibility of the receipt, and particularly as to the effect it ought to have on the decision of the cause. All the replies, to these points, have been anticipated, and I ask nothing but a review of those, I had the honor to offer.
   Derbigny, J.

delivered the opinion of the court. A re-hearing has been granted on the whole case, the court being not completely satisfied upon either of the questions raised by the respective parties. Further attention having now been paid to the subject, and the arguments of counsel attended to with much care, we find it necessary to alter our former opinion, in order to ascertain one point of fact, upon which must turn the decision of the case, and without a full knowledge of which we think that justice cannot be done.

Leaving, therefore, aside all that part of the plaintiff’s argument, which tends to show the irregularity and illegality of the proceedings carried on in the suits of Camfrancq, and of Laroque Turgeau, vs. the estate of Victor Dufour, (as well as the imperfection of the defendant’s title, to the slaves here in dispute, as resulting from a bill of sale, which neither agrees with the defendant’s pleadings, nor with the names of the suits, in which executions had issued against Victor Dufour’s estate) we will proceed to enquire, if the plaintiff has not received part of the proceeds of the sale, under which the defendant holds the slaves in question ; and if by that act he has not given up all objections to those irregularities and imperfections.

It is in proof, that the plaintiff is, at the same time, one of the heirs of Victor Dufour, whose estate was seized and sold, and one of the heirs of Laroque Turgeau, at the suit of whom an execution had issued against that estate. It is in proof, that part of the proceeds of the sale went to satisfy Laroque Turgeau’s claim, and was paid into the hands of Philip Carlier d’Outremer, his attorney in fact.

The defendant has offered further to prove, that the plaintiff has received part of this identical money, and to that effect, he has tendered a receipt, given by the plaintiff, to Carlier d’ Outremer ; and the plaintiff having excepted to the introduction of that document as improper, it becomes necessary to dispose first of that bill of exceptions. The bill, itself, recites not the ground of the plaintiff’s objection to the admission ; but the grounds, as stated in argument, are, first, that the receipt does not show the money received to be part of the proceeds of the sale of the negroes in dispute : secondly, that the receipt bears a date posterior to the beginning of this suit.

1. The first objection appears, to this court, to be a petition of principle. The evidence offered was said to go the whole length of proving the identity of the purchase money with money received. That, surely was proper evidence to be produced ; whether it was as full as the defendant maintained, was a question to be discussed after its admission.

2. The other ground of objection to the introduction of that piece of evidence is, that the receipt tendered shows itself to have been given since the beginning of this suit, and is no part of the issue on which this cause was to be tried.

We do not find it necessary to examine how far this doctrine may be sound, with respect to facts which happen pending the suit, without the act of the parties ; but, surely, it would be strange, if no act of theirs could alter the situation of the suit, after it is one begun. If, pending the suit, one of the parties chooses to do that, for the specific performance of which he was sued, will not that destroy the cause of action, and leave nothing for the court to adjudicate upon but the costs ? Surely, any act of the party, which is said to amount to a relinquishment of his claim, is proper matter for the court to ascertain, before they proceed to enquire into a dispute, which perhaps no longer exists. As to the pretended obligation of the defendant, to give notice to the plaintiff, that he will avail himself of the relinquishment of his claim, it really would be a very idle ceremony. The question here is not, shall a new fact be made a part of the issue ; but, is there still any issue between the parties ; does the suit yet exist, or does it not ? Besides, as the pleadings in our practice consist only of the petition and answer, and no such thing is known to us, as a plea puis darrein continuance, all that can be reasonably required is, that the party be not taken by surprise, but be allowed, in case of any new occurrence in the suit, a sufficient time to make his defence. It does not appear, that the plaintiff here even suggested that he had any means of repelling this piece of evidence ; he barely opposed its admission.

We think, upon the whole, that the plaintiff’s receipt was rightfully admitted ; and will now enquire, whether the money by him received, is part of the price of sale of the negroes in dispute.

In the receipt, the money paid is said to be part of a larger sum, deposited in the hands of Carlier d’Outremer, belonging to the estate of Laroque Turgeau, upon which sum, there exist several oppositions and attachments. Now the proceeds of the sale of the slaves in dispute, were delivered by the sheriff to Carlier d’Outremer as agent of Laroque Turgeau, and subsequently enjoined by an order, in which it is recited, that the said proceeds were already attached in his hands in several suits, still depending against Laroque Turgeau. A greater presumption of identity can hardly he presented. But, as the plaintiff has chosen to deny it, we think that the justice of the case requires that we should proceed no further, until the fact be ascertained.

Using, therefore, the powers given us by the 18th section of the act supplementary to the act, organizing this court, we deem it necessary to remand the case.

It is, therefore, ordered adjudged and decreed, that the judgment of the district court be reversed, and that the case be remanded for a new trial, with instructions to the judge, to admit any legal proof which the defendant may adduce to shew that the moneys mentioned in the plaintiff’s receipt, as part of the sum enjoined in the hands of Carlier d’Outremer, are the identical funds which had been paid him by the sheriff, as the proceeds of the sale of the negroes claimed by the plaintiff in this suit ; it is further ordered, that the appellee do pay the costs of this appeal.  