to employ a person to finish and fix the press, before he could WESTern Dist. press the cotton after it was ginned. The whole evidence August, 1834. showed, the gin was not completed according to the contract. The account of defendant, annexed to his answer, proved, with the exception of some items, which were stated to be charged too high.

was

The jury returned a verdict for the plaintiff, in the sum of three hundred and fifty-six dollars, without finding any thing on the plea in reconvention.

The defendant's counsel moved for a new trial, on the following grounds:

1. The jury erred in finding a verdict for the value of the work and labor done, when the suit was brought on a special

contract.

2. The verdict is contrary to law and evidence, in not finding or allowing any thing on the plea in reconvention. 3. There was no proof of the value of the work done by the plaintiff.

The motion for a new trial was overruled, and judgment rendered in conformity to the verdict. The defendant appealed.

Lawson, for the plaintiff.

Muse, for the defendant and appellant.

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

DYER 78.

SEALS.

Where the question is presented whether a workman who sues on a specific contract for work and labor, can give evidence of the work really done and recover its value, although

The appellant relies for a reversal of the judgment on five the job was not points, filed in the record.

an

completed according to conThe three first may be considered together, as presenting tract, when the employer receivto the court the question, whether a workman who sues on a ed the work in imperfect specific contract for work and labor, can give evidence of the state, and when work really done, and recover its value, although the job was sued on the connot completed according to contract, when the employer damages in rereceived the work in an unfinished state, and when sued on delay in doing the contract demands damages in reconvention, for delay in the work and for its not being doing the work and for its not having been done in a work- done in a workmanlike manner.

tract, demands

convention for

manlike manner? Held, that

WESTERN DIST.

DYER

08. SEALS.

This case is similar, in its essential features, to that of August, 1834. Loreau vs. Declouet, 3 La. Reports, 1; in which this court held, that in commutation contracts, when the reciprocal obligations are to be performed at the same time or one immethis case is sim- diately after the other, if one party goes on to perform his Loreau vs. De part but does not complete it, as agreed on, and the other ports 1 ; and that receives the thing contracted for, he is bound to pay the value the evidence is in the condition it is delivered.

ilar to that of

clouet, 3 La. Re

admissible and

value in the con

the employer The plea in reconvention, authorised the plaintiff to give in having received the work, is evidence the value of the work done, to repel the demand for bound to pay the damages against him for the non-performance of his contract. dition it is deli- The jury tried the whole case, and after allowing to the defendant about two hundred dollars, rendered a verdict in The plea in reconvention au- favor of the plaintiff, for the balance.

vered.

thorises

value of

the

which he sues,

mand for dama

ance of his contract.

plaintiff to give The fourth point made by the counsel for the appellant, is in evidence the the that the verdict of the jury on the plea of reconvention, is work done for contrary to law and evidence. It is urged, that a greater to repel the de- amount of damages was proved, than has been allowed by ges against him the jury. One witness, it is true, stated as his opinion that for non-perform the defendant had suffered greater damage in the loss of an early market, and the fall of price. But the jury was not bound to adopt the opinion of the witness, which may have been amount found by formed on taking into view remote consequences which could the jury was not not have entered into the contemplation of the parties when liquidated at the inception of the the contract was made. The jury took into view the limited suit, interest is not allowable by amount of crop to be ginned, and the delay which occurred, does not allow and formed their opinion according to the facts proved on the interest on unli- trial. We are not enabled to say, that their verdict has done quidated sums. evident injustice to the defendant.

law.

Where the

the appellee can- sums.

not avoid a re

Where the The last point appears to us well taken. The amount verdict and judgment allows in- found by the jury was not liquidated at the inception of the terest on an unli- suit, and interest is not by law to be allowed on unliquidated quidated sum, The appellee endeavors to obviate this objection, by versal of the filing in this court a remittitur as to the interest allowed by judgment and payment of costs, the judgment. the judgment. We are of opinion, that this cannot be done. by filing in the This court must pronounce on the judgment as it was renSupreme Court a remittitur of dered, independently of any modification of it by one of the parties pending the appeal.

the interest so allowed.

It is, therefore, ordered, adjudged and decreed, that the WESTErn Dist. judgment of the District Court be avoided and reversed, and August, 1834. that the plaintiff recover of the defendant and appellant the MARI, f. w. c. sum of three hundred and fifty-six dollars, with costs in the District Court; those of the appeal to be paid by the plaintiff and appellee.

28. MORRIS ET ALS.

MARY, f. w. c. vs. MORRIS ET ALS.

APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE
THEREOF PRESIDING.

In a conflict of laws between two states, where a testator in Georgia
bequeathed to certain of his slaves their freedom, to take effect five years
after his death, and before the expiration of the five years the testamen-
tary executor brings the slaves to Louisiana, and it is shown that at the
time of the bequest of freedom, the laws of Georgia prohibited the manu-
mission of slaves, except by application to the legislature: Held, that the
bequest in the will being prohibited by the laws of the state where it was
made, is null and void.

The bequest of liberty to slaves which is made in contravention of the law
of a state, enacted for the security of the public peace, and good order of
the community, is absolutely null and void; and such slaves do not ipso
facto become free under the will, on being brought to this state, where
slavery is tolerated, but in which slaves may be manumitted by will.
In a suit for freedom, when the question is libera vel non, and the plaintiff,
being, from her color and the possession of the defendant, presumed
to be a slave, the burden of proving freedom devolves on the plaintiff.
This is an action in which the plaintiff claims her freedom.
She alleges that she was held in slavery in 1809, in the
state of Georgia, by one John Marshall, who in a clause of
his will made that year, provided that she should be free on

WESTERN DIST. the first day of January, 1815. The following is the clause under which she claims her freedom:

August, 1834. MARY, f. w. c.

MORRIS ET ALS.

"Conscientiously believing that civil and religious liberty is the natural right of all men, it is my will, that Jude and her two children, Mary and Ellender, with all she may have, and William, be put into the possession of my daughter Merriam Morris, on the first day of January next (1810), to serve her for the space of five years from said date, and only five years: then, it is my will, that the said Jude and the above named servants be set free, and they are hereby declared free after serving said term of time." The will is dated "17th March, 1809."

That the said Merriam Morris never informed her of her freedom under said will, but her and her husband brought her to the state of Louisiana, and held her in slavery until the death of the husband, Gerard Morris; and that she was sold by the administrator of Morris's estate, by public act passed before a notary public in the parish of St. Helena, to Jerry Morris, who died in the parish of East Baton Rouge, and that she and her five children are now detained in slavery by the defendant, Leroy C. Morris. She prays for judgment, declaring herself and her five children to be free persons of color; that the succession of Morris be decreed to pay her two thousand dollars in damages, for the illegal detention of her and her children in slavery; and fearing she may be taken from the jurisdiction of the court, she prays that she and her children be sequestered.

The defendant pleaded a general denial; and averred that the clause of the will under which the plaintiff claims her freedom, is utterly null and void by the laws of Georgia; that by the laws of that state, a slave could be made free only by legislative act on the application of the owner.

The defendant, in a supplemental answer, alleged that Mary and her two children, Gerard and William, were adjudicated to Jerry Morris, whose estate he administers, for the price of nine hundred dollars, at the probate sale of the succession of Gerard Morris. He cites the heirs of G. Morris in warranty.

The warrantors answered, denying the plaintiff's demand, WESTERN Dist. and also denying that they were liable in warranty, &c. August, 1834. The plaintiff proved the allegations in her petition, leaving MARY, f. w. c. the authority to be set free under the laws of Georgia, to be MORRIS ET ALS. contested.

The defendants introduced in evidence an authenticated copy of the laws of Georgia, passed in 1801, relating to the manumission of slaves, and also prohibiting it in any other mode, under a heavy penalty, than by application to the legislature of the state.

The will under which the plaintiff claims, was duly admitted to probate in Georgia, and proved and admitted to record in this state.

The district judge was of opinion, that slaves, being passive in their situation and character, it was the duty of the executor to see the will executed agreeably to the intention of the testator, which he viewed in the light of a contract for freedom; that there could be no doubt under the laws of this state, where she now seeks to enforce it, she is entitled to her freedom: and it also appears, that since the date when she was entitled to her freedom, she has had five children, now living, who are also entitled to their freedom. Judgment was rendered, declaring Mary and her five children free and emancipated. Judgment was also rendered against the warrantors for the price which these persons sold for at probate sale, viz: nine hundred dollars, &c.

The warrantors appealed. In the answer to the appeal by the defendant, administrator of L. C. Morris, &c. he prays the judgment to be corrected.

1. He joins the warrantors in praying for a reversal of the judgment.

2. That it may be corrected, by allowing interest on the price of said slaves, paid to the warrantors, &c.

Brunot, for the plaintiff.

R. & A. N. Ogden, contra.

τις.