[Scott v. Lloyd.]

with the commencement and prosecution of this suit, as to impair his credit with the jury, but, whether he has an interest in the decision of the case?.

It is not contended, that the rule which does not permit a party to a negotiable instrument to invalidate it by his own testimony, applies to Scholfield. The rule is laid down in the case of the Bank of the United States v. Dunn, 6 Peters, 57; and also in the case of Walton et al. Assignees of Sutton v. Shelly, 1 Term Rep. 296, as applied to negotiable paper.

From the various releases executed by Lloyd and Scholfield, and the other documents in the case, it is not perceived that the witness can have any interest in the decision of this suit. He has relinquished all possible benefit in the judgment, should it be entered in favour of the plaintiff below. And he is exonerated from all responsibility should a judgment be given for the defendant.

It is clear from the opinion of the Court, as above cited, that Scholfield's liability for costs, was the only ground on which he was held to be incompetent; and this is entirely removed by the release of Lloyd subsequently executed.

On the part of the plaintiff in error, it is contended that Scholfield stood in the strict relations of privity of estate and contract to both the parties to the suit; and that there was also privity in the action. This may be admitted when the suit was first commenced; but the question arises, whether this relation to the contract, the estate and the action, has not been dissolved. There can be no doubt of this, unless the rights of other parties, as the creditors of Scholfield had become so interwoven in the transaction as not to be affected by the acts of the witness and Lloyd. And this is the ground assumed in the argument. But on a careful examination of the points presented, and the authorities cited, the Court do not perceive that there is sufficient ground to pronounce any of the releases executed fraudulent.

The decision in 1 Peters' C. C. R. 301, where the court held, that a party named on the record might be released, so as to constitute him a competent witness, has been cited and relied on in the argu

ment.

Such a rule would hold out to parties a strong temptation to perjury; and we think it is not sustained either by principle or authority.

Scholfield in this case was not a party on the record, and having divested himself of all interest arising out of the original agreement

[Scott v. Lloyd.]

and the prosecution of this suit, and not being liable to pay costs; we think the circuit court did not err, in admitting his deposition as evidence. The judgment of the circuit court is, therefore, affirmed, with costs.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is now here adjudged and ordered, by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs.

JOHN ZACHARIE AND WIFE, PLAINTIFFS IN ERROR V. HENRY FRANKLIN AND WIFE.

Under the laws of Louisiana, and the decisions of the courts of that state, a mark for the name, to an instrument, by a person who is unable to write his name, is of the same effect as a signature of the name.

A bill of sale of slaves and furniture, reciting that the full consideration for the property transferred, had been received, and which does not contain any stipula. tions or obligations of the party to whom it is given, is not a cynalagmatic contract, under the laws of Louisiana; and the law does not require that such a bill of sale shall have been made in as many originals as there were parties having a direct interest in it, or that it should have been signed by the vendee. Evidence will be legal, as rebutting testimony; as to repel an imputation or charge of fraud; which would not be admissible as original evidence.

IN error to the district court of the United States, for East Louisiana.

The defendants in error, Henry Franklin and wife, on the 23d of January, 1836, presented a petition to the district court of the United States, for the eastern district of Louisiana, for the recovery of certain slaves, with their children, and also of certain stock and household furniture; which the petition alleged had been sold to him by Joseph Milah, by a bill of sale, duly recorded in the proper notarial office. The bill of sale was in the following words:

State of Louisiana, Parish of St. Helena.

Know all men, to whom these presents may come, that I, Joseph Milah, have this day bargained, sold, and delivered unto Henry Franklin, his heirs, executors, administrators, and assigns, six negroes, namely: One negro woman, named Neemy; one boy, do. John; one do. Sam; one do. Nels; one negro girl, named Harriet; one do. Jenny; together with all of my cattle, hogs, horses, household and kitchen furniture, for the sum of twenty-eight hundred dollars, to me in hand paid; which property I do warrant and defend from me, my heirs, executors, and assigns, to him, his heirs, executors, administrators, and assigns, forever.

[Zacharie et al. v. Franklin et al.]

In witness whereof, I have hereunto set my hand and seal, this

The condition of the above bill of sale is such, that the above mentioned property remain in my possession so long as I live; and, after my body is consigned to the grave, to remain, as abovementioned, in the above bill of sale.

I certify the within to be truly recorded in register, in page 55, according to the law and usage of this state. In faith whereof, I grant these presents under my signature, and the impress of my seal of office, at St. Helena, this 23d day of July, 1819.

(Signed)

JAMES M'KIE, [SEAL.]

Joseph Milah died in July, 1834; and the petition claimed that the plaintiffs were entitled to the negroes, with their children, and the other property mentioned in the bill of sale; which, at the time of bringing the suit, were in the possession of the defendants; who held and detained them, and have refused to deliver them to the petitioners.

On the fifth day of February, 1836, John and Letitia Zacharie answered the petition, admitting they were in the possession of the negroes mentioned in the petition; and they aver that Letitia Zacharie is in such possession, in her capacity of tutrix of her minor children; who are the lawful proprietors of them by inheritance, from their father, Joseph Milah. They deny that the bill of sale was ever signed by Joseph Milah; and, if signed by him, it was done in error,

[Zacharie et al. v. Franklin et al.]

and through false and fraudulent representations of the plaintiff, and no consideration was given for the same; and the same was fictitious and collusive, and intended to cover or conceal a disguised donation of the slaves mentioned in the same; and was therefore null and void. The defendants asked for a trial by a jury. Afterwards, by a supplemental answer, the defendants say, that, at the time of the alleged sale, under private signature, Joseph Milah had neither children or descendants actually living; and, since the same, the children of which Letitia Zacharie is the tutrix, have been born, and are now living.

On the trial, there was given in evidence by the plaintiffs, among other documents, an instrument executed in South Carolina, Richland district, by Joseph Milah, on the 11th day of July, 1805; by which Joseph Milah, under his hand and seal, gave a negro wench and a negro boy, and also his personal property, to Sarah M'Guire. This deed was regularly acknowledged; and was recorded in the Richland district, in South Carolina, on the 10th December, 1805.

· The cause was tried by a jury, and a verdict was rendered for the plaintiffs; on which the Court gave a judgment. The defendant took two bills of exceptions.

The first bill of exceptions was in the following terms:

On the trial of this cause, the plaintiff offered in evidence an instrument in writing to his petition annexed, and bearing date the 17th July, 1819, and purporting to be executed by Joseph Milah by the affixing of his mark; and offered to prove same by the evidence of Willian M'Michael and Joseph Ott, whose signatures are affixed as subscribing witnesses, which instrument is made part of this bill of exceptions: the defendants objected to the introduction of said instrument and testimony on the ground, 1st, that being an instrument purporting to convey slaves, the same was null and void as not having been signed by the vendor; and that no parol proof could be admitted to prove its execution. 2. That a mark is not a signature within the provision of the laws of Louisiana, in relation to the conveyance of slaves. 3. That the instrument, containing a synalagmatic contract or mutual and reciprocal obligation, not being in the form of an authentic act, was invalid, because not made in as many originals as there were parties having a direct interest. 4. That the same was not signed by the vendee. But the court overruled the objections.

The second bill of exceptions was taken to the admission in eviVOL. XII.-U