dissenting. This is not the suit of a slave to procure an emancipation ; it is a suit brought by a person alleging herself to be already free in law, but tortiously restrained of her liberty by the defendant.
If the averments of the petition are true, the action can now be maintained, notwithstanding the statute of 1857 forbidding emancipation in this State. The suit of Delphine v. Guillet, recently decided, was a suit to procure an emancipation by one acknowledged to be in law still a slave. That case, therefore, bears no analogy to this.
It would also be a mistake to suppose that the plaintiff’s action is grounded merely upon the decree of the Chancery Court in Kentucky. That decree did not emancipate the plaintiff; it simply recognized her as a free woman by virtue of an anterior right, to wit, the will of her former master. It did not create her status; it only acknowledged it.
The question to be decided now is, not whether Louisa Marshall shall be emancipated in this State, for it is conceded, on all hands, that she cannot be, under the subsisting law; but the question is, was she really a free woman at the date of the institution of her suit ? If so, we are bound to recognize her freedom.
She was born in Kentucky. By her master's will absolute freedom was bequeathed to her upon her attaining the age of thirty years, which she had reached long before this suit was brought. That bequest was legal and valid by the laws of Kentucky, where it was made, and where her master was domiciliated up to the date of his death. Upon his death, by virtue of that will duly admitted to probate, Louisa became a statu libera, with a vested right to freedom at the age of thirty years. The mere lapse of that time transformed her into a free person, without any further formality, under the Kentucky law.
*624The wrongful act of a usurper in carrying her out of Kentucky and selling her as a slave for life, could not destroy her vested rights. She would still be free at-the age of thirty years, leaving purchasers to their recourse against their warrantors.
We recognized and enforced these principles in the case of Matilda v. Autrey, 10 An. 555, and I think they should govern this case.
Our statutes guard us sufficiently against any injury from this class of persons. It was provided in 1842, when this statu libera was in the State, that “ all statu liberi now in the State shall, when they become free, be transported out of the State at the expense of the last owner, by proceeding before the parish Judge at the suit of any citizen, and such statu liberi, when transported out of the State, shall, on returning into the State, be liable to all the penalties provided by law against free negroes or persons of color coming into the State.” Act of March 16'th, 1842, sec. 14 ; Session Acts, 1842, p. 316.
I, therefore, think the judgment should be affirmed.