
    
      BEARD vs. POYDRAS.
    
    Appeal from the fourth district.
    Although the party introduces a will emancipating her, she may give parol evidence of her being born, reputed, and acknowledged free.—
    This action was instituted for the recovery of tract of land, in the possession of the defendant, devised to the plaintiff by Christopher her reputed father.
    
      The code noir of Louis XV, was for a short time only in force in Louisiana.
    East'n. District.
    May 1816.
    The defendant, in his answer, claimed title to the premises under a deed from the heirs of B. Farrar, who, on his motion, were made parties to the suit as warrantors.
    An amended answer was afterwards filed, stating, that at the date of C. Beard’s will, and at his death, the plaintiff was a slave of B. Farrar, and therefore could not take any property under the will.
    At the trial, the plaintiff offered several witnesses, to prove, that she was born free, was so reputed, and had been acknowledged as such by Farrar before Beard’s death. The district judge refused to receive their testimony, on the ground, that the plaintiff having introduced Farrar’s will, and read the sixth clause of it, by which he bequeaths her freedom to her, had thereby destroyed the presumption of her free birth: and that, if she had been emancipated at. any subsequent period, her act of emancipation ought to be produced or accounted for. To the opinion of the court, in this respect, the plaintiff took a bill of exceptious.
    There was finally judgment for her, and the defendant having failed to introduce any evidence against the warrantors, his suit against them was dismissed.
    
      The statement of facts, made by the district judge, is in the following words:
    On the trial of this suit, the following facts appeared in evidence:
    A certain Christopher Beard, made his last will and testament, on the 6th of March, 1789, in which is the following clause : “ and further my will is, that my negroes shall be put on my land on Fausse Riviere to make tobacco, indigo, or whatever shall appear to my said executors to be most advantageous, and that, in the course of two or three years, if my friends should apply, my executors, if they think proper, may divide the estate between them, and a mulatto wench hereafter mentioned, but not until they know and are assured that they are my real heirs. It is also my will that some of my executors, or some other person whom they may appoint, may carry on my plantation, and that a little mulatto girl, named Venus, now on the plantation of B. Farrar, esq. receive a good education, and an equal dividend of my estate.”
    B. Farrar, E. Gallaudet and Robert Jones were appointed executors.
    Beard died in 1789, and his will was regularly proved, but was accompanied by a decree or order as follows: " New-Orleans, May 26, 1809 : Don Eistevan Miro, Brigadier-general, &c. Having seen the acts, I declare that C. Beard ought to be declared, and he is hereby declared, to have died in part intestate, not having named any heir, for which reason his father or mother ought to inherit, and in case of there being neither father nor mother, then his nearest relation ought to inherit. I declare him also to have died partly testate, having named testamentary executors.” The decree was signed by Miro, the then governor of Louisiana, with the approbation of the auditor.
    Beard had fifteen negroes on the plantation of B. Farrar. Before as well after his death, Farrar had possession of his land, and the tract claimed by the plaintiff is now in the possession of the defendant, and is the same as is alleged to have been bought from Farrar’s heirs by the defendant.
    It was granted by the Spanish government to Beard in 1789.
    In 1790, Farrar died, having made his will, the 6th clause or section of which is as follows : "I desire my executors to make free a mulatto girl, called Venus, a daughter of my negro woman Nancy, supposed to be a bastard child of C. Beard, deceased. I do give and bequeath to the said girl Venus six negroes, men and women, that is three of each, to be delivered when
    
      she arrives at the age of eighteen: but, if she dies before that age, and leaves no lawful issue, then the said negroes to return to my estate, as part thereof to all intents and purposes. And this further condition I also make, that is to say, that the above freedom and donation are in consideration of all and every claim whatever she may have to any estate left by said Beard; and I require my executors to take a proper discharge therefore, at the time of the delivery of said six negroes. I desire that said Venus be properly educated in the Christian religion, and taught to read and write, and when of proper age, that she may be put to a mantua-maker and learn the business ; and my executors to see that she is well used, and all this at the expense of my estate.”
    Venus, the plaintiff,
    was born about the year 1785, of the negro woman Nancy, a slave of B. Farrar, and reputed to be the daughter of C. Beard, tho’ no proof was adduced of her having been acknowledged as such by him.
    The land in question would rent for about 180 dollars a year.
    An order was given by the plaintiff, on the executors of Farrar, in April 1801, in favour of one Mulzach, for a part of the legacy left her by Farrar, and produced at the trial, accepted by the executors, as an evidence of her having commuted her rights, under the will of Beard, for the said legacy : but it was not proven that the said order had been paid.
    The plaintiff is not named in the inventory of the slaves of Farrar. She has been considered as free since his death, and has lived as a free woman for upwards of ten years.
    
      Livingston for the plaintiff.
    This case ought to be remanded, if the judgment is not affirmed, for the district judge erred in rejecting the witnesses, which were offered on the part of the plaintiff, to shew that she was born free. She is not a negro, but a person of mixed blood ; the presumption is therefore that she is born free, and it was lawful for her, in aid of this legal presumption, to offer parol evidence of her free birth.
    But, we contend that the judgment ought to be affirmed. It is in vain that it it is contended that the plaintiff had no other right to her freedom, but that which she derived from the acceptance of the legacy, entire and undivided, and from the performance of the condition, imposed on her by the testator. Freedom is so much favoured in law, that a conditional grant of it is always deemed absolute, and that the conditions, which testators add to the grant of freedom, are considered as if they had not been written.
    If it be written: when Titius shall arrive at the age of thirty, I wish that Stichus be free, and that my heir give him such a tract of land, and Titius dies, before he reaches his thirtieth year, Stichus shall be free, but he shall not have the land; for it is only in favor of liberty that a fiction is admitted, by which, after Titius’ death, a period of time is supposed to remain, at the expiration of which, the bequest is to have its effect, but as to the devise of the land, the condition, under which it was made, is deemed to have failed. ff 40, 4, 16.
    Freedom cannot be given for a limited time, eod. tit. 33, as for ten years, and the commentator adds—What, if it be so given? The time will be rejected, as a senseless addition.
    If it be written: let Stichus be free for ten years, the restriction is vain. Additio temporis supervacua est, eod. tit. 34.
    The Emperors to Missenius Frontonus. Freedom being granted in the testament of a soldier, in the following words, I will or order that my slave Stephen be free. The slave will enjoy his freedom, as soon as the succession is accepted. Likewise the following expressions added, provided, nevertheless, that he remain 
      
      with my heir, till &c.: but if he refuse to stay, he shall be retained as a slave, shall not have the effect of revoking the freedom ; and this will be the case also in the testaments of other persons, eod. tit 52.
    
    When freedom is given under a condition, if it be not in the power of the slave to perform it, altho’ he be not prevented by the heir, he ought to have his freedom, eod. tit. 55.
    
    
      Moreau for the defendant.
    The district court did not err, and the witnesses were properly rejected. It is in evidence, from the will of Farrar, introduced by the plaintiff, that she was his slave, was born of a negro woman, his property, and that he bequeathed her freedom to her upon certain conditions : she claims it under it. It would be therefore, a departure in the pleadings, to allege and seek to prove that she was born free. How can she say that she was born free and emancipated ?
    If she was not born free, no parol evidence of her emancipation can be received. By the 50th article of the Code Noir, enacted by Louis XV, in 1724, and especially put in force by Governor O’Reilly, in 1769, it is expressly provided that emancipation can only be granted by a written instrument: an act inter vivos or causâ mortis.
    
      We contend that she is what is in the Roman law called a statuliber, and not a free woman. On this we are at issue.
    A little closer examination of the title of the digest de manumissis testamento, commented upon by the plaintiff’s counsel, would have convinced him that the general principle of the Roman law, in respect to conditional enfranchisements, is quite the reverse of what he argues it to be, and the laws which he has cited, are exceptions only to the general rule, which are not susceptible of extention.
    Freedom may be given absolutely or conditionally, or to be enjoyed at a future day. When the slave is manumitted absolutely, he becomes free as soon as the succession is accepted ; but if either a condition or time be added to the manumission, the condition must be performed or the time must elapse, before the freedom is enjoyed, ff 40, 4, 23, § 1, 3 Pothier’s Pand. Just. 55. 14 Rodriguez’s dig. 187.
    According to the Spanish law, all legacies may be absolute or conditional, or at a future day, Part. 6, 9, 31. 1 Febrero contratos, ch. 1, n 46.
    In legacies under a condition or at future day, the condition must be performed, or the day must arrive before they have any effect. Part. 6, 9, 21. Febrero id. n. 47 48.
    
    Slaves manumitted by will, under a condition, or on a future day, were called at Rome statu liberi until they acquired their freedom. ff 40, 8, 1. 14, Rod. dig. 287.
    Statuliber. By this word was designated the slave manumitted, under a condition, or at a future epoch; it came from statuta libertas, conditio statutæ libertatis. 1. 81 ff de legatis 2 Dict. du Dig. n. 1667.
    Till the condition was performed or the day arrived, the statuliber was considered as a slave. No body is ignorant that the statuliber is in the interim the slave of the heir. ff 40, 7, 9. 14 Rod. Dig. 315.
    Children born from a woman statuliber, are the slaves of the heir. 40, 7, 16. 14 Rod. Dig. 321, 322.
    We read in the books of Gaius Cassius, that what is acquired by a statuliber, before the performance of the condition, added to the manumission, does not enter into the peculium which is bequeathed, unless the legacy be made for the time when he should be free. Yet it is to be observed that the, peculium being susceptible of increase and decrease, the increase ought to make part of the legacy, provided the heir has not 
      
      taken the peculium from the slave. ff 40, 7, 28, 14 Rod. Dig. 331.
    The statuliber differs but little from any other slave, as to the actions which grow out of a tort, the gestion of an affair, or a contract, ff 40, 7, 29. 14 Rod. Dig. 331.
    It is then correct to say that the plaintiff is as yet but a statuliber, and that she cannot lay any pretention to her freedom, till she performs the condition added by the testator to her manumission. After this, and not before, she will be entitled to her freedom, and to the legacy left her by Farrar, if she has not yet received it.
    The statuliber can only become free by performing the condition added to his manumission, if it be possible, and no one prevents him from performing it. ff 40, 7, 3. 14 Rod. Dig. 300.
    As to the possibilty of performing the condition, the Roman law speaks thus : he is not considered as statuliber, whose freedom is protracted to so distant a day, that he cannot live till then; or who is manumitted under a condition very difficult or almost impossible to be performed, so that he cannot hope to be free. As if I manumit my slave, on condition that he pays my heir one thousand times a given sum, or if I manumit him when he dies : for freedom thus given, according to Julianus, is without effect, because the testator had not really the intention of giving it. ff 40, 7, 4, § 1. 14 Rod. Dig. 308.
    As to the slave being hindered from performing the condition, there are two kinds of hinderances which cause the condition to be considered as performed—the hinderance which proceeds from the heir, that which results from obstacles which it is not in the power of the statuliber to overcome.
    If the heir prevents the performance of the condition, as for example, if he refuses to receive the sum which the statuliber tenders him, according to the will of the testator, it is beyond a doubt that the slave is free, because he is prevented by the heir from performing the condition. ff 40, 7, 3.
    Every hinderance proceeding from the heir does not, however, cause the condition to be considered as performed with regard to the statuliber. It is requisite, in order that it may have this effect, that the object of the heir should have been to prevent him to obtain his freedom, ff 40, 7, 38. Thus, if the heir forbids the statuliber to work for any other person but him, desiring that he should serve him exclusively, in such a case, and the like, it will not be holden that he thereby hinders him to perform the condition imposed by the testator, that the slave should pay a given sum to the heir, because the slave is nevertheless bound to labour for the heir. 14 Rod. Dig. 338.
    With regard to any personal hinderance, it is admitted, that if the statuliber does every thing in his power to perform the condition, and he cannot succeed, he is deemed to have performed it, and he becomes free.
    When freedom is given under a condition, the decisions are, that if the slave is not in fault in not performing the condition, although he be not hindered by the heir, he shall have his freedom. ff 40, 4, 55. id. 40.
    There is a similar disposition in the partidas. If a testator has ordered that his slave be emancipated, on condition that he perform certain services to another person, if the slave does every thing in his power, and be hindered by another, the bequest shall take effect, and the slave shall be manumitted, in the same manner as if he had performed the services. The reason is that the law has ever been favorable to liberty. We say that if the testator makes a legacy, under a condition which it is in the power of the legatee, and of some other individual to perform, if the condition be not performed, through the fault of the legatee, the legacy shall not be valid. Part. 6, 9, 22.
    
      This is a valuable authority, and is decisive in the present case. For, it cannot be pretended that the heirs of Farrar put any obstacle to the performance of the condition imposed on the plaintiff by the testator, nor that she has been hindered from performing it.
    The partida 6, 9, 31, contains the same disposition as the ff 40, 4, 16, cited by the plaintiff’s counsel. Where freedom is bequeathed to take place on a given epoch, the law admits certain fictions in favour of freedom; but this cannot be extended to the case of freedom, granted on condition of doing or not doing some thing, to give a thing, to renounce a right: because positive laws decide, that the statuliber can only acquire his freedom by the performance of the condition, unless it be not in his power to perform it.
    The plaintiff’s counsel has cited ff 40, 4, 33 and 34. These authorities are not at all applicable to the present case. They relate to freedom bequeathed for a time. The plaintiff is not manumitted so. Freedom may be bequeathed to be enjoyed after a future day: ff 10, 4, 41, but it cannot be bequeathed for a time, so that the manumitted slave, at its expiration, may be held in slavery again, because he who was once free cannot be a slave again.
    
      Lastly, it is contended that conditions, added to the bequest of freedom, are to be considered as nullities, and ff 40, 4, 52 & 55 are relied on. How can this assertion be reconciled with the laws of this and the 7th title, which we have cited, which declare that the statuliber can only cease to be a slave, by the performance of the conditions, under which freedom has been granted to him?
    It is known how rigorous the Romans were in regard to the forms of their actions, clauses and stipulations. If in a clause of a will, freedom was granted absolutely, and in another it was sought to be revoked, the latter was considered as not written. This was the case in the will of Missenius. Freedom was deemed to have been bequeathed absolutely, since the law cited states that the slave will acquire his freedom, as soon as the succession is accepted, which is, as has been shewn, the proper character of freedom bequeathed absolutely. The second clause was, according to our reasoning, considered less as the grant of freedom, than as a revocatory clause on a certain contingency: such a revocation could not be admitted, as it militated against the principle that he who was once free can never be reduced to slavery. It is thus that Rodriguez understands this part of the digest. Por la clausula primera de la ley, se concede la liberdad al siervo ; la qual no se revoca por lo clausula posterior. 14 Rod. Dig. 213.
    So, in a donation inter vivos, which ought to be irrevocable from its nature, every clause by which a donor would reserve to himself the right of disposing freely of the thing given, or to resume it, would be null, while he might legally impose conditions on the donee, without performing which, he could not have the benefit of the donation. 2 Pothier Don. inter vivos, part 7, art. 3.
    
   Derbigny, J.

delivered the opinion of the court. The plaintiff and appellee, a mulatto woman, supposed to be the bastard child of Christopher Beard, deceased, claims a tract of land, now in the possession of the defendant and appellant, which she says was devised to her by her reputed father.

According to the statement of facts, which comes up with the record, it appears that the plaintiff was the slave of one Benjamin Farrar, at the time of Beard’s death : but she alleges that, if certain witnesses whom she offered had been heard, she might have proven that she was born free, was so reputed and had been acknowledged as such by Farrar, before the death of Beard. That evidence having been rejected, her counsel filed a bill of exceptions, upon which it is necessary to pronounce before we proceed further.

From the matter set forth in the bill of exceptions, it appears that before any attempt had been made on the part of the defendant to prove that she is a slave, she introduced in evidence the will of Benjamin Farrar, in which he orders his executors to emancipate her, and afterwards the testimony, which was rejected, in order to shew that she was born free and had been acknowledged as such by Farrar, in the life time of Beard. The district judge thought that by producing the will of Farrar, she had destroyed the presumption of her free birth, and had shewn that she relied on a title to freedom by emancipation, and being of opinion that freedom by emancipation could not be proven by witnesses, he rejected the witnesses proffered.

In both these positions we think that he was mistaken.

If the will of Farrar, produced by the plaintiff, contained nothing else with regard to her, than an expression of his intention, that she should be enfranchised, there would have been some reason to suppose that she relied on it, as her title to freedom, and to consider her as stopped from attempting to prove that she was born free, or that she had been manumitted prior to that will; tho’ it must be confessed this would have been to carry very far the doctrine of estoppel. But the sixth section of the will of Farrar, which the plaintiff read in evidence, contains other particulars concerning her. He there stipulated that her freedom, and the legacy which he leaves her, are in consideration of all and every claim whatever, which she may have to any estate left by Beard, and requires that, upon her arriving to the age of eighteen years, his executors shall take from her a proper discharge therefrom. Here then is another matter mentioned than the emancipation. The plaintiff well may have produced this document, to shew that Benjamin Farrar was himself aware that she had some claim upon the estate of Beard, which Farrar had appropriated to his own use. The mere reading of that clause, therefore, is no evidence that the plaintiff intended to use it as a title to freedom, and ought by no means to have operated as a barrier against the introduction of any proof, which might tend either to shew her free birth or her emancipation anterior to that will.

The plaintiff has offered to evince two facts : first that she was born free, secondly that she was reputed free and acknowleged as such by Farrar, in the life time of Beard. On the admission of any proof of the first fact, the district judge was of opinion that she had herself destroyed the presumption of her free birth, and could not be permitted to establish it by evidence. But, we have already shewn that the introduction of the will of Farrar cannot be interpreted with that rigour. The plaintiff then could produce testimony that she was born free.

As to the other fact, viz. that she was acknowleged free by Farrar, in the life time of Beard, it is said, that as this must mean that she was then emancipated by him, no oral evidence could be admitted in support of that allegation because emancipation must be proven by writing. It is not denied that, by the laws of Spain, slaves could be emancipated verbally, in presence of witnesses: but, it is said, that at the time referred to by the plaintiff, the French law, called the code noir, according to which none but written acts of emancipation were deemed valid, was in force in this country. To establish this, a proclamation is produced, issued by Don Alessandro de O’Reilly, of the 27th of August, 1769, whereby it is continued in force. How far the Spanish officer, who took possession of Louisiana, was authorised to maintain the former laws or introduce the laws of Spain, is a subject on which vain inquiries have often been made here. It is probable he did not deposit among the archives of the province any copy of instructions, or that, if he did, it has disappeared before the country. It was delivered to the government of the United States. We are therefore left to take it for granted that he did not act without authorisation. Admitting then that he had a discretionary power to preserve such of the existing laws as should be deemed fit, it appears that he thought proper on the 27th of August, 1769, that is to say, about a week after he had taken possession, to declare that the French code noir should continue in force. But that this was a measure resorted to on the spur of the moment, in the midst of the storm which then agitated the country, is evident from his subsequent conduct. We see him three months after, when tranquillity was restored and when he could give the necessary attention to the business of legislation publishing in the French language and extract from the whole body of the Spanish law, with references to the books in which they are contained, purporting to be intended for an elementary instruction to the inhabitants of the province; meanwhile the knowledge of the Spanish language should diffuse itself and enable them to read the laws in their original idiom. This publication, followed from that moment by an uninterrupted observance of the Spanish law, has been received as an introduction of the Spanish code in all its parts, and must be considered as having repealed the laws formerly prevailing in Louisiana, whether they had continued in force by the tacit or express consent of government. The observation made by the counsel of the appellant that the French code noir, ordered by O’Reilly to continue in force, could co-exist with the Spanish laws afterwards published, because it contains certain regulations for which the Spanish laws have made no provision, is probably correct. When a law is not absolutely and generally repealed, such of its provisions as are not repugnant with the subsequent laws, do not cease to have effect. On the present question, was there no disposition in the laws of Spain concerning the enfranchisement of slaves, it might be just to pretend that the French code noir ought to be resorted to, but as the reverse is the case we must refuse to consult it.

The witnesses, offered by the plaintiff, ought therefore to have been heard, even upon the fact of emancipation, supposing the testimony tendered such as the law 1, tit. 22, part. 4, does admit. Upon this point, it is true that the plaintiff has not been as explicit as it was her duty to have been : she ought to have shewn her readiness to prove such emancipation as is valid by that law, that is to say, an enfranchisement before five witnesses. The manner in which she tendered her proof, did not shew that, but rather raised a suspicion that she was not able to prove so much. Yet, as it did not exclude all probability that she may evince what the law requires, she ought to have been permitted to introduce her witnesses.

The plaintiff, notwithstanding the rejection of that evidence, had judgment in her favour in the inferior court, and did we agree with the district judge on the merits of the case, it would be unnecessary to send it back. But, being of opinion that as the case now stands, she ought not to recover, we are obliged to remand it.

It is adjudged, ordered and decreed, that the judgment of the district court be reversed, both as to the principal demand and as to the warranty, and that the case be remanded to the district court, with instructions to the judge to admit any legal evidence, which the plaintiff may offer in support of the allegations contained in her bill of exceptions. 
      
       Martin, J. did not join in this opinion, having been of counsel in the case.
     