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WESTERN DIST.
August, 1834.

LOUIS, f. m. c.

V8.

LOUIS, f. m. c. vs. CABARRUS ET ALS.

CABARRUS ET ALS APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE

THEREOF PRESIDING.

Proof of the residence of a slave, in a free state, the constitution of which forbids slavery, during the space of two or three years, unconnected with any other proof, is insufficient in law, to entitle such slave to his freedom. The residence of a slave, in a state where slavery is forbidden, contrary to the will, or without the consent of the owner, does not deprive the latter of his right to his property.

The consent of the owner of a slave, that he should go and perform work and labor in a free state, does not of itself free the slave, though this may be effected, by the slave's going there under this permission.

The plaintiff claims to be a free man, and institutes this suit against the defendants, who hold him in slavery, to obtain his freedom; he alleges, that he resided in the state of Ohio, two or three years, where slavery is prohibited, and is consequently free: He prays judgment, that he may be entitled to his freedom, and for thirty dollars per month, from the commencement of suit until he shall be set free.

The defendants expressly deny every allegation in the petition, and aver that the plaintiff was born a slave, of a slave mother, and that they purchased him as a slave for life, and paid a valuable consideration for him.

Mrs. Leverett, a witness for plaintiff, swears, that she first saw Louis Richardson, the plaintiff, about twelve or thirteen years ago, in Cincinnati, in the state of Ohio; that she knew him to reside there two or three years.

Mr. Blake, witness for defendants, states, that in 1833 plaintiff told him he was born a slave; but said he was entitled to his freedom; that he had worked in Cincinnati, with his master; that he became free by residing in the state of Ohio, and at the same time, stated he was taken back to Kentucky, where his master resided, and continued to serve him as a slave, until he was brought to Louisiana, and sold to defendants.

The cause was submitted to a jury, on this testimony.

The counsel of the defendant, moved the court to charge the jury, that proof of a residence of two or three years, in the state of Ohio, unconnected with other proof, is not sufficient in law, to establish his freedom, &c., which the court refused, but instructed the jury, that if the plaintiff worked in Ohio, by consent of his former owner, that he did thereby become free, &c.

The jury returned a verdict, "that the plaintiff was a free man." Judgment was rendered in conformity to the verdict, from which the defendants appealed.

Saunders, for the plaintiff.

Turner, contra.

Martin, J., delivered the opinion of the court.

The defendants are appellants from a judgment, which declares the plaintiff entitled to his freedom. It is in proof that he was born a slave, but he claims his freedom by emancipation, resulting from a residence of two or three years in the state of Ohio, the constitution of which, declares that there shall be no slavery or involuntary servitude within that state. The plaintiff obtained the verdict of a jury. There does not appear to be any thing in the record to induce the belief that the jury erred. This court is of opinion the verdict is correct.

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Proof of the residence of a

slave in a free

tution of which

But the counsel for the defendants has drawn the attention of the court to a bill of exceptions taken to the refusal of the judge to charge the jury, that proof of the residence of the plaintiff in the state of Ohio, during the space of two or three years, unconnected with any other proof, was insufficient in state, the constilaw, to establish his freedom. And, further, that a person forbids slavery, held as a slave, in a slave-holding state, does not become free of two or three during the space by residing a short time in a free state, unless his owner nected with any resides there as a citizen of that state, and carries along with other proof, is him such slave; that in this case, unless the jury believed law to that the former owners actually resided in Ohio as a citizen, his freedom. having taken the plaintiff with him as his slave, they ought not to find a verdict in favor of the latter, declaring him free,

years, uncon

insufficient in

entitle

such slave to

WESTERN DIST.

LOUIS, f. m. c.

The court charged the jury, that if the plaintiff resided in August, 1834. the state of Ohio, by the consent of his master, he did thereby become a freeman; that the consent of the owner, that the slave should go into the state of Ohio and perform labor, The residence was sufficient to entitle him to his freedom. of a slave, in a state where sla

vs.

CABARRUS ET ALS

den, contrary to

out the consent

It appears to this court, that the judge a quo, ought to have very is forbid charged the jury in the manner required in the first part or the will or with- branch of the request of the defendant's counsel. The resiof his owner, dence of a slave in the state of Ohio, contrary to the will, or does not deprive without the knowledge of his master or owner, does not right to his pro- deprive the latter of the right to his property.

the latter of his

perty.

The

consent

The latter part of the judge's charge to the jury, is too of the owner of loosely expressed, and indefinitely stated, to justify a finding

a slave that he

should go and thereon.

perform work

and labor in a The consent of the master, that the slave should go and free state, does perform work and labor in Ohio, does not, of itself, free the

not of itself free

the slave, though slave, though this may be effected by the slave's going there this may be

effected by the under this permission.

there under this

slave's going All parties have a right to a trial by jury, aided by any permission. legal opinion of the court which they may request, and uninfluenced by any improper charge of the judge.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; the verdict set aside, and the cause remanded with directions to the judge a quo, to charge the jury that proof of a slave's having resided in the state of Ohio, or any free state during the period of two or three years, unconnected with any other proof, does not authorise or entitle him to his freedom; and to abstain from charging or stating to the jury, that the permission given by the master to his slave, to go and labor in the state of Ohio, had the effect to emancipate him. The costs of the appellate court to be paid by the plaintiff and appellee.

WESTERN DIST.

HEIRS OF KIMBALL US. HEIRS OF LOPEZ.

August, 1854.

APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE KIMBALL'S HEIRS

OF THE EIGHTH PRESIDING.

When the record does not furnish a certificate, either by the judge or clerk, that it contains all the evidence on which the cause was tried, nor a statement of facts, the cause cannot be examined on its merits, but the court will decide on the questions of law, presented by the bills of exception in the record.

A sheriff cannot be called as witness, to prove what proceedings took place, at a certain sale made by him, when the return made on the execution is silent, or stated that the execution had been stayed, by order of the District Court.

Parole evidence is inadmissible, to supply defects in the sheriff's return of proceedings under an execution, or where it contradicts the official return of the officer.

The plaintiffs sue as the heirs and legal representatives of Esther McD. Kimball, to recover a slave named Peter, worth eight hundred dollars, who they allege, is illegally in the possession of the defendant's ancestor. This suit was filed the 13th May, 1826, and on the 20th, in pursuance of the prayer of the petition, the negro was sequestered. The plaintiffs set up title to the slave in contest.

The defendant pleaded a general denial, and excepted to answering the petition, because a copy in the French language was not served on him; on the merits, he says he purchased the slave in question, of one John Sands, in 1815, by an act under private signature, which is annexed; and that Sands purchased him at sheriff's sale, the 11th of July, 1814, as appears by the deputy sheriff's bill of sale, of that date: He pleads the prescription of ten years, and calls John Sands, his vendor, in warranty, and in the event of eviction, he prays judgment against his warrantor, for the value of the slave, and costs.

Sands answered to the call in warranty. He states he purchased the slave Peter, at sheriff's sale, for the parish of

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WESTERN DIST. East Baton Rouge, when a boy of about thirteen years of age; August, 1834. that Lopez proposed to take him, for the price at which KIMBALL'S HEIRS he was bid off, and be substituted to him as the purchaser, to

78.

LOPEZ'S HEIRS.

which he consented, and the defendant took possession, and has continued to possess said slave ever since; that shortly after the inception of this suit, he was induced, at the instance of Mr. Lopez, to sign an act of sale of Peter to him, and that the latter stated at the time, he had no intention or wish to render him liable, in consequence of signing it, but wanted it, and had it dated back to the 25th February, 1825, to enable him to resist this suit; that since this transaction Lopez has died, but his heirs and representatives are well acquainted with the facts, and this effort by them to call him in warranty, is illegal and fraudulent; that the plaintiffs have no right to recover, as the slave was legally sold, and purchased in good faith, by this respondent, in the manner he has alleged.

The testimony shows, that Esther McD. Kimball was the wife of Wm. Williams, that in 1809 she and her brother Benjamin Kimball, signed an obligation to pay one David B. Stewart, four hundred and thirty-six dollars; that after the death of Williams, his wife married John Cammack. In 1814, judgment was obtained on the above obligation, against the estate of B. Kimball and Esther McD. Cammack, after her second marriage. The negro Peter, then a boy, was given up to Cammack and wife, sold under execution to satisfy the judgment of Stewart, and purchased by John Sands, the warrantor.

Kelly, a witness for plaintiff, states that he knows the negro Peter, and that he was born the property of William Williams, the first husband of Esther McD. Kimball, the mother of plaintiffs. His mother's name was Sucky, and was derived from the estate of Frederick Kimball, as part of William Williams's wife's estate, which she inherited from her father.

Dorothy Wells knew the slave Peter, from his birth until 1812. He was the property of Mrs. Williams, the mother of plaintiffs. She received his mother from her father's

estate.

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