
    TATE vs. PENNE.
    
    . 384|When the has been ⅛ 548possession of party offering the copy, the proof of losswhi"h will authorize the intro-ductionofthe latter as evidence, must depend onthe particular cir cumsf anees of the case.
    The law pre sumes the hus band the fa-children bom ⅞⅛ ,nar'
    Appeal from the court of the eighth district, the judge of the third presiding.
   Porter, J.

delivered the opinion of the court This is an action by a mother against her daughter. The petitioner claims a slave and five children, which she alleges she purchased in the year 1812, and possessed them for a longtime after: that the defendant has taken them into possession and refuses to deliver up. r

The defendant pleads the general issue; avers that she has a good title to the property sued for, that the slaves were purchased in (rust for her: and finally that she has held them five years previous to the institution of this suit, in virtue of a just title, and with good fidth.

in cage 0f p°ratíonyac-presumedwi-lesscohabita-tíon has been physically im

tionofachiid bom during m£?biagffec£ not be affect-⅞* ⅛®spouses,

The cause was submitted to a jury in the court of the first instance, who found for the . - . , , defendant; judgment or non-suit was rendered against the plaintiff, after overruling a motion for a new trial, and she appealed.

The plaintiff appears to have been married three times. After living one or two years with her first husband, Sims, a voluntary separation took' place between them, and he removed from that part of the country in which they had resided. Subsequent to this removal the defendant was born, the alleged fruit of an illegitimate connexion of the plaintiff with one Laurens. They lived together and cohabited until ten years had elapsed from the time Sims was heard of, when they were married. This marriage was preceded by a contract, in which among many other stipulations, it is stated, that the slaves which form the object of this suit should be secured to the petitioner; after which follows that clause in the contract under which the defendant sets up title to them. “which said mulattress named Sally, with hef three children and their issue, the said parties agree respectively to secure to their natural daughter, named Delphine, her heirs and assigns forever.” This contract was dated in 1816. In 1825 the defendant intermarried with A. Penne, and the slaves were sent or permitted to be removed to the house of the plaintiff

On the trial below an objection was made to reading in evidence the copy offered of the contract of marriage, in which the clause just set out is found. It appears from testimony taken on this objection, that a very irregular practice has prevailed in the parish of St. Tammany of recording all original acts in a book of record, and after recording them to hand back the originals to the parties. The witnesses mentioned in the copy were called into court* and they deposed, that they had attested a con. tract of marriage between the plaintiff and Laurens which was passed, or acknowledged before the parish judge. Notice was given to the plaintiff to produce the instrument. The defendant’s husband swore that the contract was not in his possession nor in that of his wife: that he did not know where it was—that 7 ' it was not in any of the public offices of the parish, and that he believed it lost. That he had been diligently searching for it for a year back, but without success. The parish judge testified it was not in his office, and had not been there since he took possession of it. One of the heirs of Laurens swore it was not in his, nor did he ever see it in the hands of any of the family. The person who recorded it in the notarial record deposed that the copy produced in court was a correct copy.

We think that under the circumstances of the case the court below did not err in admitting the copy in evidence. The book, in which jhe original had been recorded being produced in court, it was not the copy of a copy, but the copy of the original that was offered. The instrument never had been in possession of the defendant. She appears to have taken all means in her power to procure it. The proof of loss which will authorise the introduction of inferior evidence must depend on the particular circumstance of each case.

The next question is in relation to the validity of the act. The appellant contends that it is an instrument sous seinq privé, and a* z r 1 such could not be the evidence of a matrimonial agreement. The commencement of the act does not state, as is usually the case, that the parties came before the judge or notary.— It begins with these words “articles of agreement made and concluded, &c.” and it terminates by declaring, that the parties affixed their names to it in the presence of the subscribing witness. After, and immediately following which declaration, are in these words: “done and executed before me, the date above written, James Tate, parish judge.”

The only objection which we conceive can be fairly made to this not being a public act, is the deviation from the ordinary form of commencing instruments of that description. But this objection is removed by the conclusion, in which it is stated the act was made and executed before the parish judge. This declaration at the close of the instrument is entitled to as much weight, and furnishes as strong ev* idenceofits being executed before the notary, as if the same allegations were contained in several other parts of it.

But the allegations of the plaintiff go farther than the form in which the act was cloathed. She contends that the stipulations in it, in favor of the defendant, were null and void .

If the defendant was capable of taking from the parties, we see nothing illegal in that clause of the marriage contract by which the slaves in question were secured to the defendant. The title, it is true, was in the mother, but the father, as he styles himself, also settled property at the same time on the defendant, and he gave to the plaintiff by the contract, $1500 if she survived him.

The plaintiff, however, has resorted to a most extraordinary ground for annulling this Conveyance to her child. She insists that her first husband Sims being alive at the time of the birth of the defendant, the latter was an adulterous bastard, and incapable of taking from her by donation—that the agreement disturbed the legal order ofsuccession.

We are satisfied this ground for annulling the contract cannot avail the plaintiff: for, admitting she was legally married to Sims at the time defendant was born, the consequence would be that the defendant would be the daughter of Sims, not of Laurens, and as such did not lie under any incapacity to receive a J 1 donation from the parties to the contract. The law (said our code at the time of the birth of the defendant) considers the husband of the mother as the father of all the children conceived during marriage. In case of voluntary separation, access is always presumed unless the contrary be proved: the presumption of paternity is at an end, when the remoteness of the husband from the wife has been such that cohabitation has been physically impossible. C. Code, p. 45, art. 7,10 fy 11.

The evidence establishes the marriage of the parties in 1806. The defendant was born in 1809. Cooper swears they lived together a year and then parted. Lanier testifies, he has not seen Sims since a year after his marriage. Edwards states he saw him in 1808 in New-Orleans, and never saw him on the east side of the lake since he went over there.— Woods swears they separated in 1807, that he saw Sims for a week after and never saw him since. Lanier says the plaintiff was in New-Orleans in 1807.

This is all the evidence. It creates a presumption of absence and non access: but that will not do in cases like this. The legal pre. sumption of the husband being the father, and of access being presumed in cases of voluntary separation, can only be destroyed by evidence bringing the parties within the exception the law has created to the rule, namely the physical impossibility of connexion—moral will not do.

Now that physical impossibility can only be shewn, by proving the residence of the hus* band and wife to be so remote from each other that access was impossible. The proof here wholly fails in establishing it. The evidence of the husband’s residence is only negative. He was not on the east side of the lake. Where the wife was, the proof is silent. How can we tell from the evidence that they did not meet and cohabit.

We have left out of view in coming to this conclusion the fact of the mother and Laurens having declared the defendant to be their child, and of their having treated her as such. It being a perfectly well established principle in cases of thiskind, that a child born during marriage cannot have its condition affected by the declaration of one or both of the spouses.—Toullier, vol. 2, lib, 1, chap. 2, no. 859.

Waggaman for plaintiff—Hennen for defendant.

We conclude therefore that the mother has failed to establish that her child was an adulterous bastard, and as such incapable of receiving the donation given to her by the marriage contract. Eyen if she had, we have strong doubts whether such a plea could be received from her, but we do not find it necessary to decide the question.

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