MONTREUIL ET AL., f. p. c. vs. PIERRE, f. m. c., 9 La. 356

Bullard, J., delivered the opinion of the court. The first of these actions was instituted by the heirs at law of one Francois Montreuil, f. m. c., to cause to be declared null and void his testament, by which the original defendant, Charles Pierre, a man of color, was instituted his heir, and appointed executor, on the grounds: 1st. That one of the witnesses was not a resident in the parish, when the testament was made; and 2d. That the instituted heir was a slave, and consequently, under a legal incapacity to take by will.

The defendant put in an answer, maintaining the validity of the testament on both grounds, and especially alleging that he was free, and had been in the undisputed enjoyment of his freedom for more than twenty years. Before this issue was tried, the defendant died without children; but having a widow, who therefore came forward to be admitted as his heir at law, and made herself a party to the original suit. She maintained the validity of the will, and the freedom of her deceased husband. There are other incidents to this proceeding, which it is not necessary to detail.

About the same time, Rosette Devillier, f. w. c., the mother of the deceased Charles Pierre, came forward and presented her petition in the Probate Court, claiming the estate of her son, adversely to his widow, except so far as it depended on the will of Montreuil, on the ground that Charles Pierre was her slave, by purchase from his former mistress, or her executors. After a trial in the Court of Probates, the validity of the will was sustained on both grounds, and the freedom of Charles Pierre recognised, and the original plaintiffs, together with Rosette Devillier, appealed.

The two cases have been twice argued in this court, and we have bestowed upon them our most serious attention. It must be confessed, they present a novel and repulsive spectacle.

A mother, whose son is shown to have died in the undisputed condition of a free man, except so far as this suit is concerned ; who had enjoyed defacto that condition in her presence, for a series of years ; who had married a free woman with the assent of his mother, now comes forward, after his death, to claim the fruits of his industry, on the allegation that her son lived and died her slave; that he was a mere thing, incapable of acquiring property, or of taking or transmitting any thing by inheritance.

S.tich pretensions must be rigorously scrutinized; for while we are forced to admit, that the relation of mistress and slave may exist between the mother and her child, as a necessary result of her legal capacity to purchase, and his liability to be sold as a thing in commerce, yet when her title rests upon purchase, she must show that her intention was, not merely to ameliorate the condition of her child, by redeeming him from the authority of his master, but to hold.him in the same condition, with a right to sell him again, and subject to the payment of her debts, or to be transmitted to her heirs.

It is clear, that Charles Pierre was born the slave of Jumonville, and that at the age of twelve years, to wit: in 1807, and before the act of the legislature prohibiting the emancipation of slaves before, the age of thirty years, had began to operate, he passed from the power of his former master, under the control of his mother. The nature of the contract, by which this change in his condition was effected, forms the principal difficulty in this case.

On the part of Charles Pierre, it is contended,'that for a sum of five hundred dollars, paid by the mother, he was emancipated by the executors of Madame Jumonville; but the mother contends,, that she purchased him as a slave, and paid for him as such, the sum of five hundred dollars. To prove the emancipation of Charles Pierre,, who was-known also by the name of Bernard, the defendants offered in evidence, a document purporting to be a copy signed by P. Pedesclaux, under his notarial seal, of

an act'passed before Pedesclaux, on the 13th of August, 1807, by which the executors of Madame Jumonville declare, that they have in their possession, as her slave, a little negro named Bernard, aged about twelve years, free from incumbrances, and they declare that they give his liberty, to said Bernard, in consideration of the sum of five hundred dollars, paid to them by his mother, Rosette Devillier ; desisting from all claims and right, of property, upon him, in favor of himself; that, he might thenceforward enjoy all the prerogatives attached to free persons.

This act appears by the copy to have been signed by the executors, and two witnesses. The introduction of this document was opposed, on the ground that the said copy is not dated, and that there is not in the records of Pierre Pedesclaux for the year 1807, any complete act from which said copy could have been taken, but that there is the projet of

an act, dated August 13th, 1807, entirely and literally similar, but not signed by any body, and having on the contrary, the word “null,” written at the foot of it, in the hand writing of the notary, which projet, it was contended, was the original of the aforesaid papers, which being an incorrect copy, and not the copy of a notarial act ought to be rejected; and, also, on the ground that notarial acts ought to be recorded in regular books, to affect, third persons; that it appears that the book of acts passed by Pierre Pedesclaux in 1807, was so regularly kept that no pages are wanting in the same, and that there is no act in the said record bearing any resemblance to the aforesaid copy, except t.he said projet.

The court admitted the paper, on the ground that it bears the signature and seal of the notary; and the judge adds, in the bill of exceptions, signed by him, that the grounds of objection stated by the plaintiffs’ counsel, so far as they relate to facts, as by him stated above, had not been substantiated by previous proof of said facts, except with regard to the existence of a projet of

an act as above spoken of, in the register of the notary, without the signature of either of the parties, notary or witnesses. In considering this bill of exceptions, we are bound to inquire into the admissibility, of the document in question, according to the proof of facts previously administered, to destroy the presumption of its being a genuine copy of an authentic act arising from the certificate of the notary. The only facts which appear to have been so proved, according to the certificate of the judge, were, that there existed in the register of Pedesclaux for the year 1807, a projet of

an act, exactly similar, but without the signatures of parties, witnesses or notary, and that the copy is without date. The want of dale to the copy, we do not consider of any importance, and may be laid out of view. ,11'10 onSina* notarial act can ofiJlTof1 tíre no-^^bjFhjm" with his seal ap-stm'be’admissi-'have*effect’ because it must fr® m thToffichii cIl;u'aetcf °f the~ copy of an ori-fnce'existed.10 * The - loss or the original act ^^™^161' supposed, than that the notary was guilty of ;^gFeértiled" c°py of :m act that never extst-ed.

The objection in substance is, that the instrument offered is false or forged; not merely that it is not a true copy, but that no such original or protocol ever existed ■: and we are asked to infer this from the negative fact, that no such protocol, signed by the parties and witnesses, is found in the office of the notary, after a lapse of nearly thirty years, and from the positive fact, that a mere pro jet is produced of similar date and context, but not completed by the signatures of the parties.

If no original whatever could be found, in the office of the notary, it appears to us, that a copy, certified by the notary, would still be admissible in evidence; because it must be presumed, from the official character of the notary, to be a copy of an original which once existed. If the evidence stopped there, it would be insufficient to exclude the copy; for we are rather to suppose the loss or destruction of the protocol, than that the notary was guilty of a forgery.

How is the qase varied, when coupled with the other fact, that there does exist on the register, an original projet of an , f,, , „ J act of the same tenor l According to the Spanish law, in force when this transaction took place, the instrumento was divided into three kinds, or ii i . , . . , , , rather degrees: the registro, the original and the traslado, The registro or protocol was kept by the notary, as the form from which the original was transcribed ; the original was in fact a copy from the protocol, certified by the notary, and the traslado a copy not of the protocol, but of the copia original.

The document in question purports to be the copia original. The authorities cited by the plaintiffs’ counsel from Febrero, do not, as we understand them, carry the doctrine so far as he contends for, and authorise the court to presume, that no such act was ever passed, upon such proofs as have been exhibited in this case.

Great faith was attached to the official acts of notaries, and Gregorio Lopez, in his commentaries on the 9th law, 19th title, of the 3d Partida, says that'when the instrument is ancient, and the notary dead, it will be presumed that a protocol once existed, though none can be produced: “Si verb instrumentum scriptum asset anti-quum et tabillio jam mortuus, videratur standum instrumento sumpto, licet de protocollo non appareat, cum presumí debeal prcecessisse ex temporis diuturnitate The fact that the notary wrote the word “null” under the imperfect act, did not render the act more.null than it was before; and it might be fairly argued, that the notary wrote it for some purpose, and perhaps for the purpose of indicating to his clerks, that another had been signed in lieu of it.

Certainly the existence of such a projet furnishes some proof (hat the notary was directed by the parties to prepare such an instrurbent; and. the fact that from that period till the death of Charles Pierre, the family of Jumonville disisted from setting up any claim to him, strengthens the presump-lion of the genuineness of an original. We are therefore of opinion, that the court did not err in admitting the copy. The evidence on the part of the mother, does not contradict that act, but rather confirms it. The consideration she alleges she paid, was the same mentioned in the deed, and paid at the same time.

The receipt of Moulon does not specify for what purpose the money was paid. No witness is examined to show what was the condition of (he bargain between the mother and the executors, and although a sale of a slave, at that time, might be proved by parole, it must be proved by witnesses who could establish the consent of the parties, the price, and other conditions of the contract.

If soon after this pretended sale, Charles Pierre had died of a disease existing at the time of the contract, and incurable, would the mother, on the evidence now exhibited, have been entitled to a redhibitory action against the heirs of Jumon-ville 1 We think not. The condition and relations of the parties have, ever since its date, conformed to the terms of the deed. While Charles Pierre was a minor, the mother exercised a control over him; but on attaining the age of majority, he appears to have acted as if sui juris in her presence, and with her assent.

The very copy in question must have been in his possession, for more than twenty years, as it is shown that the witness, in whose hand writing it is made out, has been dead for that length of time. He was at that time a minor, and the fair presumption is, that he obtained the paper, not from the notary, but from his mother. > Where a person of color al~ leges he is free, and has been so for many years, lie will be allowed to avail himself of any legal evidence in his favor, under this plea, without being* bound by the pleadings to specific proofs.

It is further contended, that even if the copy.be admissible, it is not legal proof of emancipation, because the Spanish law required five witnesses to such

an act. In the case of Bazzi vs. Rose et ah, 8 Martin’s Reports, 149, this court held, that as between the master and the slave, five witnesses are required by Partida 4, title 22, lib. 1; but it does not follow, that a stranger has a right to set up such a nullity, which the Partida does not declare to be an absolute one. Whatever weight we might attach to this objection, if urged by the heirs of Jumonville, it is hot entitled to much consideration, when pressed by a mother, and whose own title to freedom rests on a similar act, as shown by the record. The further objection that this evidence was inadmissible, because the defendant had not pleaded his emancipation by such

an act, has no weight with this court. He alleges that lie was free, and that he had been free for many years. In support of that allegation, he was authorised to avail himself of any legal evidence in his favor; and parties are not bound, in their pleadings, to specify the proofs on which they intend to rely. The remaining alleged ground of nullity of the will, is, that one of the witnesses was not a resident of the parish of Orleans, when the will was executed. Upon this question, which is one 'of fact only, there is much discrepancy in the evidence.

One thing, however, is clear, that until a short time at least before the will was executed, the witness had been for many years domiciliated in the parish of Orleans. He was himself examined on the trial of this' case, and swore that his residence was still, at that time, in the parish of Orleans.

The evidence does not satisfy us, that he had changed his domicil at the time alluded, to, and according to the principles recognised by this court, in the case of Waller ■vs, Lea, 8 Louisiana Reports, 315, the witness, for aught that appeal's, might have been still amenable to the jurisdiction of the Parish Court of Orleans. It is, therefore, ordered, adjudged and decreed, that the judgments rendered in these cases, be severally affirmed, with costs. The counsel for the plaintiffs presented a petition for a re-hearing in this case, which, on consideration, the court refused.