EASTERN DIS. HURST vs. WALLACE. HURST vs. WALLACE. APPEAL FROM THE COURT OF THE FIRST DISTRICT. Where slaves are put on board of a steamboat by a person who assumes to be their owner, and who accompanies them to their place of destination, no responsibility attaches to the captain. Whether the captain would be liable, where the slaves are put on board, but not accompanied by the person assuming the ownership, without proof of criminality, or gross negligence.—Quere? Buchanan, for appellants. 1. The evidence for the defendant, to which exception was taken, was improperly admitted. 2. The allegations of petition as regards the abduction of slaves, and the damages claimed therefor, are made out by proof. 3. The defendant, as master of the steamboat, on board of which the slaves were carried away, is, by law, liable for the damages occasioned by their abduction, in consequence of not having complied with the requisitions of an act of 1816, entitled "An act to take the most effectual measures in order to prevent the transportation or carrying away of slaves out of this state, against the will of their owners, and for other purposes." Worthington, for appellee. The judgment conforms to the justice of the case, and is consistent with the evidence. The facts are stated in the opinion of the court, delivered by MATHEWS, J. In this case, the plaintiff claims damages, which he alleges that he suffered by the misconduct of the defendant, (who February, 1833. was master of the steamboat Hercules,) by receiving on board EASTERN DIS. said boat and carrying to Louisville, in Kentucky, two slaves, the property of the petitioner. Reliance for a recovery of the damages claimed, is placed solely on the provisions of an act of the legislature, passed in 1816, to be found in the printed laws of that year, at page eight. The third and fourth sections of this act, are those cited by the plaintiff in support of his claim. The first of these sections prohibits masters or commanders of ships, and other vessels and water crafts, from carrying out of this state any free persons of color, without filing evidence in the office of the mayor of New-Orleans, or in that of some parish judge, as the case may require, of the freedom of the person about to be transported. And in cases where slaves are to be carried out of the state, written permissions of the owners are required to be filed in like manner. The fourth section fixes the amount of penalty for a violation of the act, and establishes the right of persons injured to recover damages, &c. The court below rendered judgment in favor of the defendant, from which the plaintiff appealed. HURST vs. WALLACE. put on board of a person who assumes to be their accompanies them destination, no taches to the cap The evidence of the case shows, that the slaves in question Where slaves are were put on board the boat by a person who assumed to be steamboat by a and who went with them in the boat. No proof owner, and who their owner, seems to have been adduced to authorise a belief, that the to their place of master acted in any manner criminally, or was grossly negli- responsibility atgent in his conduct in receiving the slaves and pretended tain. owner on board his boat, and carrying them to their place of destination. Unless the statute must be so construed as to prohibit commanders of vessels from carrying slaves and their owners, together, out of the state, without pursuing the formalities required by it, in relation to free persons of color, or slaves, who may be permitted to be taken away. are of opinion, that neither the letter nor the spirit of law imposes such duty on a master of a vessel, when owner puts his slaves on board and goes with them. haps, not even in a case when they were put on board without criminality being accompanied by a person assuming a right of owner- Quere? ship, where no proof was made of criminality, or gross negli We Whether the cap tain would be lia- the ble companied by the Per- person assuming the ownership, without proof of or gross negligence, February, 1833. STERLIN'S vs. GROS. EASTERN DIS. gence, on the part of the commander. The evidence shows, It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. STERLIN'S EXECUTOR vs. GROS. APPEAL FROM THE COURT OF PROBATES OF THE CITY AND PARISH OF A nuncupative testament by public act, executed in the presence of three witnesses, who do not reside within the parish, is null and void. Sales of property made under a will, which is null and void, cannot be set aside by the court, unless third persons who have obtained an interest in the property, are made parties. An estate is liable for the costs incurred by an executor, under a will which is null and void, in endeavoring to sustain its validity. If a will be declared null and void, the executor under it, will be decreed to render to the court an account of his administration, and to bring into court all the moneys and credits of the estate in his hands. This action was brought to obtain possession of the estate of Philippe Sterlin, deceased. The plaintiff produced a notarial copy of the will, by which the deceased acknowledged him to be his only child, and bequeathed to him three-fourths of the property of which the testator should die possessed, and February, 1833. STERLIN'S constituted him his legatee, by universal title. The plaintiff EASTERN DIS. averred the nullity of another instrument, purporting to be a will, executed by the deceased, on the grounds of want of capacity in the deceased, at the time of making it, misunderstanding of its contents, and for not being legally witnessed. The defendant and executor, under the will alleged to be void, appeared and excepted, that the plaintiff was not entitled to be put in possession of the estate of the deceased. He answered, that the will, under which he was executor, was valid; that the same had been duly homologated and registered in court, and the usual formalities had been complied with on his part. He averred, that part of the property of the succession had been sold by the register of wills, under an order of the court. An injunction obtained by the plaintiff, was dissolved on the defendant giving bond and security, conformably to the 307th article of the Code of Practice. The court rescinded the order of registry and execution of the will, under which the defendant was appointed testamentary executor; and that will avoided, and all proceedings under it, which had taken place. The defendant appealed. D. & J. Seghers, for appellant. 1. The executor is bound to maintain the last will of his testator by all lawful means. He would be liable in damages, should he not do it. He cannot, therefore, be decreed to pay ten per centum damages to the plaintiff and appellee, for the sole fact of having appealed from the judgment of the inferior tribunal. 2. The court below was right in directing the estate of Sterlin to be placed in the hands of the register of wills, and not in the possession of the alleged natural son of the deceased, even on his offering due security; because, should the last will of the deceased be annulled, there exists another will, which, if admitted, is then to be executed, and which vs. GROS. EASTERN DIS. appoints testamentary executors, in whose hands alone the estate must be placed. February, 1833. STERLIN'S EXECUTOR vs. GROS. 3. The court below was right in directing the costs of the suit to be paid by the estate. The executor is bound to maintain the last will of his testator, and should not suffer damages for doing his duty. 4. The injunction obtained by the plaintiff and appellee, was correctly dissolved, in pursuance of article 307 of the Code of Practice, and 2601 of the Civil Code; and this court cannot, in this case, inquire into the validity of a sale of real property situated in the parish of Jefferson, but sold at New-Orleans by the register of wills. 5. Admitting, for argument's sake, that the last will of the deceased be null and void, even in that case the court below appears to us to have erred in deciding that all the proceedings under the will are thereby annulled. It does not necessarily follow, that the inventories and sales, made under the direction of the Probate Court, must fall, because the last will of the deceased is found to be defective. Such a principle would throw society into confusion, and destroy faith due to judicial proceedings. Duranton, vol. 3, page 471, no. 479. 6. The plaintiff has no right to sue, for the only legal evidence on record of his being the natural son of the deceased, is contained in the last will under which he claims. Now this will is null and void on its very inspection, as not being with the formalities required by law. It is not entitled to any credit whatever, and of course the allegations therein contained must not be attended to, and are of no effect. 7. The court below appears to us to have erred in admitting testimony to contradict the last will of the deceased. (It is here to be observed, that this testimony was taken down in court, subject to all legal exceptions. This was done in order not to burthen the record with bills of exceptions.) We say, that no such testimony ought to have been admitted. No defect was perceived in the will on its inspection. The will, therefore, according to the Civil Code, art. 1640, makes full proof by itself, that all the formalities have been complied with, |