Preston v. Zabrisky

2 La. 226 | La. | 1831

Martin, .T.,

delivered the opinion of the court.

This is a posse~sory actiqn for two slaves, which the plaintiff alleges were fraudulently taken from his possession. The general issue was pleaded; there was judgment as in the ease of a nonsuit, and the plaintiff appealed.

The record shows that the slaves were sent to the plaintiff by the defendant, who, a few weeks after sent orders, by a black boy,~to them to return home, which they did.

The evidence does not enable us to discover for what purposes the slaves were sent to the plaintifE During the argument his counsel has urged,they were sent in exchange for one or more others, sent by the plaintiff to the defendant; while the latter's counsel has urgedan exchange was contemplated, and the slaves reciprocally sent on trial.

It behooves the plaintiff to have shown that he possessed the slaves as owner, or usafructuary, that he was entitled to their use,or had a ~real right growing from these slaves.-C. of Prac. 47.-One year's peaceable possession, or a possession of less than one year and on eviction by fraud or violence.-Id. 40, 2.

No possession in the plaintiff, of the nature of that required r r \ by the Code has been shown. His seems to have been a mere precarious possession. It lasted but a few weeks. The defendant would not have been guilty of fraud had he ordered the slaves home, and he connot be said to have been so, by sending orders to them to return, by a black boy. He is a free colored person, and may have been deterred from going to the plaintiff’s house to order his slaves home, by the apprehension of giving rise to some altercation.

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