delivered the opinion of the court.
jn this case the immediate emancipation of a mulatto girl about twenty years old, a statu libera, is claimed from the defendants, who hold her in slavery. The cause was submitted to a jury in the court below, who found a verdict in favor of the plaintiff, and judgment .being thereon rendered, the defendants appealed.
The claim of immediate liberty on the part of the mulattress, in the present instance, is based on' two acts introduced in evidence in support of the action: on a donation made in due form of law, by J. Mornay, the owner of the girl, on the 26 th February, 1816, to the defendant M. S. E. Marot, who was then a minor, and accepted by the agency of her father. This donation was made on the express condition that the donee should liberate the slave when she should attain the age of thirty years. Some days after this act, on the 11th of March of the same year, the father, who had assisted his minor child in its acceptance, made a declaration in writing, in a private act, attested by the two witnesses who had signed the notarial act of donation, stating that the intention of the parties to that deed was, that the slave given should be liberated at age °f twenty years, and not thirty, as expressed in the donation. These acts were given' in evidence to the jury, and from the verdict which they found, it would seem (.hat more credit was given by them to the last act, than the first. Their verdict may, in reality, be based on the true . . , , , intention of the parties; but the evidence did not, in our opinion? legally authorise them to come to this conclusion, The simple declaration of the father, who had accepted the • „ i ■ , , . , . , . donation for his daughter, without the consent and acquiscence 0f Qie donor, expressly given and contained in the written . , , , , „ , instrument, which purports to be explanatory of the intentions the parties to the donation, cannot affect the rights acquired by the donee. ' In «very thing relating to the A J , J °. ° contract of donation, the acceptor, on her part, was functus *479officio, and by himself could do no acts prejudicial to her interest. It is really painful, in applying rules of law to a case, to be obliged to violate sentiments and feelings of humanity: but this pain is sometimes felt by judges in the settlement of conflicting rights between suitors.
The Supreme Court will exercise the general power granted by law, and remand a cause for a trial de novo, when in its opinion justice requires it. It is a general rule in remanding a cause, that the court should be influenced alone by the pleadings, documents and evidence in the record \ but in an action claiming the release of a person from slavery to liberty, every thing which may properly be done in Javorem libertaiiSy should be done, even to’ notice facts de hors the record.Yet, although in the present instance, a sense of duty will not allow us to acquiesce in the verdict and judgment of the court below, we do not consider ourselves bound to leave tbe wretched victim of present affliction without hope.
- The case is peculiar in its nature — a.claim for liberty! And, although generally considered, such claims, in a government where slavery is tolerated, ought not to be particularly favored when brought in opposition to the rights of property; yet the facts disclosed in the present instance have convinced us that it is a case in which we ought to exercise the general power granted by law to remand causes for a trial de novo,, whenever justice, in our opinion, requires such a proceeding. It is, perhaps, true, as a general rule, that the Supreme Court, in the exercise of this power, should be influenced alone by the pleadings, documents, and evidence found in the record; whether these things, as exhibited^in tbe present case, would authorise us to remand, may be doubtful: but it is an action brought to redeem a helpless female from slavery; and every thing which may properly be done in favorum libertatis, should be done, even to notice facts de hors the record.
It was stated at the bar, and not denied, that the person now claiming her immediate emancipation, was taken by her owners to France, a country whose institutions do not tolerate slavery or involuntary servitude in any manner, and was placed by them under the direction of a hair-dresser, to learn His art. Did she not become free in France 1 Being brought from a foreign country into the United States, is she not free, according to tbe provisions of laws enacted by Congress 1 These are questions which we will not now solve; but we deem it proper to remand the cause, in order that they may be put in a train for solution.
*480It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, aud the verdict of the jury set aside. And it is further ordered, adjudged and decreed, that the cause be remanded to said court, to be tried de novo ; the appellee to pay the costs of this appeal.