
    
      MARIE vs. AVART.
    
    Appeal from the court of the parish and city of New-Orleans.
    A slave may-sue for her freedom, auotber person than her master.
    The petition stated, that the plaintiffis a slave of Nicholas Lauve, that Erasmus Robert Avart, made his last will, by which he directed that. immediately after his decease, his testamentary executor (the present defendant) should purchase the plaintiff and her child, and afterwards emancipate them according to law—that Nicholas Lauve is willing to sell the plaintiff and her child, for a reasonable price, wherefore the plaintiff, in order to obtain her freedom, and that of her child in due time, prays that the defendant be cited to declare, whether he accepts the said executorship, and in case he does, that he may ke compelled to fulfil the will of the testator, in 1 . the premises, and in case he declines it, some proper and fit person be appointed in his stead.
    The defendant pleaded the incapacity of the plaintiff to stand in court, as she was the slave, not of the testator, but of another person,
    The parisfi court gave judgment, that “ the plaintiff be maintained in her right to institute this suit, that she be declared entitled to obtain her freedom, and, to this end, that the defendant, in this cause, be compelled to purchase the plaintiff, and her child, as agreed upon by her master, and emancipate them, agreeably to the last will and testament of Erasmus R. Avart, of whom he is executor, and further, that he pay the costs of the suit.
    From this judgment, the defendant appealed.
   Martin, J.

delivered the opinion of the court. This action is grounded on the regulations, in our civil code, which relate to slaves, and particularly that part of them, which authorises them to be parties in civil actions, either as plaintiffs or defendants, when they have to claim or prove their freedom.

The defendant denies the plaintiff’s right to sue, because, by her own shewing in the petition, she is indisputably the slave of another person, and does not claim freedom directly against the defendant.

De Armas for the plaintiff, Mazureau for the defendant.

As she is not opposed by her acknowledged master, we are of opinion, that she has a right to maintain her action. But, as the parish court * has erred in deciding definitively, in favor of her right to freedom:

It is therefore, ordered, adjudged and decreed, that the judgment be annulled, avoided and reversed, and that the case be sent back with instructions to the judge, to hear the parties and decide the case, after an investigation of its merits.  