There is but one bill of exceptions in the record. It was taken to the admission in evidence of a notarial act of sale passed in New Orleans, from Jacob B. Walker (the original owner of the slave in controversy) to Stephen Truslues, the vendor of the plaintiff Lowber. The objection is based upon the ground that no such title had been set forth in the plaintiff’s pleadings.

Whatever difficulty this question might have presented under other circumstances, appears to he removed by a portion of the evidence which has been *796received without objection. The object of pleading is to notify the adverse party of the nature of the claim or defence, that he may be prepared to rebut it and not be surprised on the trial. On various occasions, this court has held, that if the record discloses notice previously brought home to the party so that it was impossible for him to have been surprised, the lack of more full and explicit pleadings will not compel the rejection of pertinent evidence, the existence of which was previously known to the party objecting to its introduction.

In this case, it appears from a letter written by the defendant to the plaintiff before the institution of this suit, that he was apprised of the fact that the plaintiff derived his title from Walkei', and that the validity of this title was to be tested by a lawsuit. Lowber was in possession of the slave for many months under a title in the State of Louisiana. MoGoy wishing to avail himself of the supposed advantages of possession and perhaps of an Alabama forum, took the slave away from Louisiana without the consent or knowledge of Lowber. He then wrote Lowber the letter above referred to ; it is in these words:

“ When I saw you yesterday, I told you that I would not take James, but afterwards I consulted a lawyer and he advised me to a different course, so I took him away peaceably. Now all I want is to try who owns him, and I say I do, but the court will determine that; if he is not mine, I have nothing more to say, but I know I paid for him fourteen months ago, a longtime before Mr. Walker disposed of Mm in New Orleans.”

It thus appears that the defendant was aware that both parties were to claim under Walken', the common vendor, and that the question to be litigated was, which of Walker's deeds conferred the better right. Accordingly we find him in his answer, charging the defendant Lowbei' and his immediate vendor, Truslues, with acquiring their pretended rights to the slave James, in bad faith and with notice of the transfer from Walker to himself.

We are of opinion that the defendant should derive no benefit from his act of removing the slave without leave from this State, and from the control of the party who had a lawful possession under title. ,

The sole question is, can the title of MoGoy under Walker prevail over that of Lowber under Walker ? There is written and oral evidence unobjected to, of a power from Walker to Rowley to sell his slaves then in the possession of Rowley, among which it is established that the slave James was included. The acts of sale from Walker to Truslues and from Truslues to Lowber, are translative of property, and it is proven that possession followed both acts, so that there was a continuous adverse possession in the plaintiff and his vendor as against Walker and MoGoy, from the 21th of May, 1853, the date of the sale from Walker to Truslues, up to the 19th of May, 1854, when MoGoy, who never had possession before, carried off the slave without leave, and against his promise to Lowber.

MoGoy claims under an act executed in Alabama, on the 11th of March, 1853, by Walker to himself, purporting- to be a sale of several slaves, (including the boy Jemes,) with the condition “that the possession of the said slaves should remain with the said Walker for the space of twelve months.” The evidence shows that this was really a conditional sale, amounting to a species of mortgage for an anticedent debt, as one of the. attesting- witnesses deposed that the slave James was, at the date of this act, in New Orleans, and that there *797was an agreement at the time, that if the amount of the debt was not paid in twelve months, the slaves were to he given up to Me Coy.

By this peculiar contract, (which has never been of reoord in Louisiana, although recorded in Mobile on the 20th of April, 1853,) the defendant put it in the power of Waüoer so to act, that an innocent purchaser in Louisiana might he deceived and defrauded. Lowber purchased in good faith and without notice a slave, to which his vendor in Louisiana exhibited a complete title from one who is conceded to have been the original owner in Alabama. Can such a vendee or mortgagee as MaCoy, who, in contracting for his own security, assented to a olause giving the control of the slave for twelve months, in Louisiana, to his vendor or mortgagor, oust an innocent purchaser, like Lowber, who bought her, within the twelve months, and received possession under a chain of title from Walleer, without any notice of the legal or equitable claims of MaCoy in Alabama?

The defendant’s allegation that Lowber had notice of his claims, is unsupported by evidence.

On acoount of the usurpation of possession of Me Coy, and his removal of the slave from this State under the circumstances disclosed, he cannot shelter himself from responsibility by pleading the non-registry of the private acts of sale from Truslues to Lowber. He has no title himself reoorded in Louisiana, and he knew that Lowber was in possession under title. His own acts led to the deception of Lowber, and he oannot be permitted to profit hy his wrong.

The judgment is in the alternative for the restitution of the slave, or damages to the extent of his value with hire. We think the damages should not be reduoed.

Judgment affirmed,