
    AUGUSTIN & AL. vs. CAILLEAU & AL.
    Appeal from the court of the parish and city of New-Orleans.
    A judgment is not res judicata as to those who were not parties to the suit.
   Derbigny, J.

delivered the opinion of the court. The plaintiffs are persons of color, who have been seized under execution, at the suit of the appellees, as slaves, belonging to the estate left by Marie Françoise de Magnan, widow Letourneur, who died in this city some years ago. They claim their freedom as emancipated by their late mistress.

To this claim the defendants and appellees opposed the authority of the thing judged, pretending that, inasmuch as the appellants had been sequestrated at their suit, pending the demand for which they obtained judgment against the estate of the widow Letourneur, they must be considered as parties to that suit, and use judgment res judicata against them. It is hardly necessary seriously to observe that, to make any one party defendant to a suit, he must he sewed with a citation and a copy of of the petition. Slaves may sue and he sued, when they have to claim or to prove their freedom ; but then, undoubtedly, they must he made parties, according to the usual rules, and not merely be put in jail, without any other notice. The plea of res judicata was, therefore, properly overruled by the court below.

East'n District.

April, 1818.

Upon the overruling of that plea, the judgment obtained by the appellees remained open to the attacks of the appellants; and it became their right to show any thing that could contradict it and destroy its force. It does not appear, however, that the appellants thought themselves at liberty to question the validity of that judgment. They admitted it to be a judgment against the estate of their mistress, and did not offer any evidence in opposition to it, relying upon other considerations to support their claim to freedom, This point would, therefore, he setUeri by that admission, had not the record itself been brought up aud laid before us: for, when referene is made to a record, the record must agree with the statement of the facts, or e~lse that statament must be viewed as a mistake, and the record alone be considered as containing the truth.

On opening this record then, we find that, instead of a demand aganist the executor of the widow, Letourniur, for the purpose of obtaining a liquidation of the appellee's claim, it is suit rem against the slaves said to belong to the estate, of which the appellees pretend to be creditors. The petition purports to pray for their sequestration and sale; and, as some of them had been bequeathed to Louis Magnan and to Eliza Magnan, wife of Evariste Marchand, these persons are made defendants as legatees. It has, indeed, come out collaterally, that this Louis Magnan is the same individual whom the widow Letourneur had oppointed her executor; but, although the petition states that the widow Letourneur disposed of her property by will, giving to the present appellants their freedom, and bequeathed other slaves, no prayer is made that the executor testamentary, whoever lie was, be cited to defend the suit. Magnan is called upon as legatee of three slaves, in the same manner as Eliza Magnan is made party as legatee of two other slaves. They do not appear to have made any defence, nor is it seen what has become of the slaves bequeathed to them. At the same time, the remainder of the estate, consisting of the present plaintiffs, is unrepresented, and of course not defended. The suit, said to be founded on a claim of the appellees against the husband of the testatrix, as their tutor, is prosecuted to judgment ex parte, and the unrepresented estate is found debtor of the appellees, in a sum of fifteen thousand dollars, and upwards. Leaving these proceedings for what they are worth, we say that this judgment, whatever name it may have received in the court below, is not a judgment against the estate of the widow Letourneur; and that if the counsel for the appellants had ever gone the length of admitting the debt as liquidated by a judgment against the estate, it would not avail the appellees, no such judgment having in fact been rendered.

The situation of the parties to the present suit is, therefore, this: the emancipation of the appellants, under the will of their mistress, is not only proved, but acknowledged by the appellees themselves. On the other side, the appellees have not proved their claim against the estate of the widow Letourneur, either by judgment obtained against it, or in any other manner. The appellants must, consequently, be left in possession of their freedom.

Moreau for the plaintiffs, Livingston for the defendants.

It is therefore, ordered, adjudged and de- creed. that the judgment of the parish court be annulled, avoided and reversed, and that the appellants be relieved from the custody of the sheriff.  