The appellants ave the sureties of the defendant, Mary Wise, to whom certain premises were leased by the plaintiff. They urged, in the court below', as a ground of defence, that the principаl debtor was a slave ; that the ordinances of the City Council prоhibited contracts of lease entered into with slaves ; and that the contract of lease made between the plaintiff and thе defendant, Mary Wise, is null and void, because in violation of law and in derogation of public order and public policy.
Evidence offered on trial by the sureties, to substantiate this defence, w'as overruled on several grounds, which must be noticed seriatim.
1st. “That the subject-matter had beеn passed upon and decided in the judgment rendered on the exсeption herein and was res judicata."
The record does not contain thе evidence offered on the trial of the exception ; and we are left in the dark even as to the character of thе proof adduced on that occasion. Be this as it may, the answer, filed subsequently, alleged the same grounds of defence as were set forth in the exception ; and, as they bore upon the merits of this controversy, came more appropriately in thе answer on the merits. The overruling of an exception beforе issued joined, is not res judicata on the matters at issue; the court may, in the mean timе, revise interlocutory decrees, rendered in the course оf proceedings.
2dly. “ That the surety cannot plead matters personal to the principal obligor.”
The defence set up thаt the contract under consideration is null and void, because it сontravenes public policy, is not a personal exception. If slaves were merely incapacitated from making а contract of lease, the case might be different; but there is no affinity between a prohibitory law, laying down rules of public poliсy, and one merely incapacitating a party for his own protection or interest.
3dly. “ That the defendants having contracted with thе plaintiff by an act acknowledging the defendant, Mary Wise, to be a free woman of color, they are now estopped from denying the fact or proving the contrary.”
If it be true that it is against the poliсy of the law, that a slave should rent a house in the city of New Orleаns, it is obvious that a contract of that kind is radically null and void; and that whatever devices were resorted to for the purpose оf evading the law, may be met by parol evidence, adduced еven in behalf of the contracting parties. The admission in the contract of lease, that Mary Wise was a free woman of color, does not debar her co-defendants from proving the contrary. Sеe the case of Susan C. Weaver v. C. E. Alter, Opinion Book 31, p. 164.
In remanding this case for the purpose of allowing the appellants to prove their allegations with regard to the status of their co-defendant, and the prohibition by the city* оrdinances, we must not be understood to decide that, admiting the alleged facts to be substantiated, the plaintiff would be cut off1 from all rеlief. Proper allegations and proof might perhaps be mаde on her behalf.
It is, therefore, ordered and decreed, thаt the judgment of the District Court be avoided and reversed ; and that this case be remanded for further proceedings according to law ; the plaintiff and appellee paying the costs of appeal.