#### *Williams v. Manuel.

March, 1843,

Richmond.

(Absent Bkookk and Auien, J.)

Slaves—Suit to Protect Future Right to Freedom.—A testatrix domiciled in the district of Columbia bequeaths a negro to a legatee, to serve him 27 j years, and then be free. The legatee sells the | negro for that period, and takes from the pur-1 chaser a bond conditioned that he will not sell the negro for a longer time. The negro is brought into Virginia by the purchaser, with the purpose . of carrying him through this state to a city or i state farther south. On a bill in the name of the negro, an injunction is awarded by a judge in Virginia, to prevent his being carried out of the commonwealth until farther order. The purchaser, by his answer, denies that he has attempted to sell the negro for a longer period than the 27 years, and denies that he has designed, or does design, to do any act to prevent him from enjoying his liberty at the end of that lime. The evidence in support of the bill only shews that the purchaser was engaged in the business of purchasing and selling slaves. Hisitd, as it does not appear by the evidence that the contemplated removal of the negro beyond the limits of this commonwealth was with intent to defeat his right to freedom when the same should accrue, or upon any claim to hold or sell him as a slave beyond that period, the inj unction must be dissolved, and the negro restored to the purchaser’s possession.

On the 19th of November 1839, a bill was presented to the judge of the circuit superior court of law and chancery for the county of Henrico and city of Richmond, in the name of Manuel sometimes called Manuel Dodson, setting forth, that he was late the slave and property of Elizabeth Magruder of Washington county in the district of Columbia, who, by her will bearing date the 7th of March 1827, and proved and recorded on the 13th of July 1827 in the orphans court of said county, bequeathed as follows: “I will and bequeath to my niece Elizabeth Hamilton my negro boy Manuel Dodson, to serve for 27 years, and my negro woman xMary Dodson, to serve for 15 years, and at the expiration of the term of service of each, the said negroes shall be free. It is *my*understanding that the term of service of all the slaves above named shall commence at the period of my death. It is my desire that George Watterston shall be, and I do hereby constitute and appoint him, the executor of this my last will and testament. ” That, shortly after the death of the testatrix, he passed into the possession of dr. Charles Hamilton, the husband of said Elizabeth Hamilton, and remained in his possession till on or about the 18th of October 1839, when he was placed in the jail of Washington city by said Hamilton, for the purpose of selling him. That Hamilton admitted at the time, that he had the right to retain him in servitude only for about 14 years, being the remainder of the term of 27 years in said will mentioned, and had previously assured him, at his request, that he should be sold to some person residing in the city of Washington. That on the 14th inst. (November 1839) the complainant was removed from the said jail to the jail of one Thomas Williams, a trader in slaves; and Williams stated, in reply to the complainant’s enquiries as to his destination, that he (Williams) intended to remove him to his farm in Virginia, a short distance down the Potomac. That after Williams had handcuffed him and taken him on board the steamboat, he asked Williams whether he was not free, and Williams answered that the will had been done away by act of *412congress, and that he had bought him for life. That Williams proceeded to convey him to the town of Fredericksburg, and thence to the city of Richmond, where he is now confined in the private jail of one Bacon Tait. That Williams has avowed his intention of transporting him to Charleston, S. C., or to some other foreign parts unknown- to him; by which he will be deprived of every opportunity of establishing his right to freedom, and will be doomed to slavery for the rest *of his life. The bill made Williams and Tait defendants, and prayed that they be injoined from selling, transporting or conveying the complainant without the jurisdiction of the court, till the matters of complaint set forth in the bill can be heard; that the complainant be allowed to sue in forma pauperis; that counsel be assigned him, and that he be allowed the protection and aid of the court to enable him to assert his right to freedom, and be placed in the hands of the sheriff of Henrico till the final order of the court.

The bill was verified by the affidavit of the complainant, and by an extract from the will of Elizabeth Magruder, made by an attorney at law in Washington; and it was accompanied by the certificate of counsel practising in the circuit court of Henrico and Richmond, that in his opinion the complainant had just cause to apply to a court of equity for protection and relief.

Judge Nicholas awarded an injunction agreeably to the prayer of the bill, and _ordered that unless the defendants, or one of them, should enter into bond with sufficient security in the penalty of 1500 dollars, to have the negro forthcoming to answer the decree of the court, the officer to whose - hands the process might come should take possession of him, and safely keep him until the further order of the court.

The process was served the 19th of November 1839, by the sheriff of Henrico, on Tait, who refusing to give the bond required by the order, the sheriff took possession of the negro and committed him to jail.

On the first of January 1840, when a term commenced, the court made an order directing the sheriff of Henrico to hire out the plaintiff for the year, and thereafter from year to year until the further order of the court, taking from the hirer bond with good security for the payment of the hire, and for the return of the plaintiff well clothed at the expiration of the term for *which he might be hired, unless he should be lost without the default of the hirer.

As to the defendant Tait, the bill was taken for confessed. At August rules 1840,-Williams appeared and filed his answer. He exhibited with his answer a copy of the will of Elizabeth Magruder, containing the clauses mentioned in the bill; and a bill of sale dated the 24th of October 1839, from C. B. Hamilton, purporting that Hamilton, in consideration of the sum of 262 dollars 50 cents, sold to Williams “a negro man by name Manuel Dobson, to serve as a slave until the 19th of June 1854, and then to be set free at the cost and proper charges of him the said Thomas Williams.” He also exhibited a copy of a bond executed on the same day by him to Hamilton, in the penalty of 500 dollars, with a condition that if Williams shall not sell or keep the said negro man for a longer period than that after mentioned, viz. after the 19th of June 1854, then the obligation is to be void. And the answer, after referring to these exhibits, proceeded as follows: 1 ‘This respondent denies that he has attempted to sell the slave for a longer period than that for which he holds and has a right to sell him, as already shewn; and this respondent also denies that he has heretofore designed, or does now design, to sell the said slave as a slave for life, or to do any act to deprive him of the means of enjoying his liberty when entitled to it. And this respondent insists that this court, as he is advised, has no lawful right or authority to restrain him in the exercise of his right to carry his slave to any part of the United States, or to sell him as a slave for the term before indicated.”

Depositions were taken on behalf of the plaintiff, to prove that Williams was engaged in the business of purchasing and selling slaves; and one of the witnesses deposed that when Williams was in Rich.mond in the fall of 1839, he told him he was on his way to New Orleans. . *On the 11th of August 1840, a motion by Williams to dissolve the injunction was rejected.

The cause was regularly set for hearing, but did not come on until after the passage of the act of March 13, 1841, providing an additional judge to exercise the chancery jurisdiction that belonged to the circuit superior court of Henrico and Richmond. Sess. Acts 1840-41, p. 65, ch. 48.

On the 30th of April 1841, the cause came on to be heard before judge Robinson, who was appointed under the aforesaid act. It appearing that no formal order had been theretofore made allowing the plaintiff to sue in forma pauperis or assigning him counsel, (though such permission was reasonably to be inferred from the fact that the bill had been entertained, and from the former orders entered in the cause) the court thereupon assigned Herbert A. Claiborne senior and Herbert A. Claiborne junior counsel for the plaintiff, to conduct the suit on his behalf, and decreed that the defendant Williams should not be permitted to take the plaintiff into his possession, until he the said defendant should have given bond to the commonwealth of Virginia, with good security, in the penalty of 1500 dollars, with condition to be void if he should have the said plaintiff forthcoming, and produce him to the court, or to the sheriff of the county of Henrico, on the 19th of June 1854; the said bond and security to be approved by the clerk of the *413court. The decree provided that the plaintiff was first to give security, by bond with good surety, approved in like manner, conditioned that he the said plaintiff should continue faithfully in the service of the said Thomas 'Williams, or of any person to whom the said Williams might sell him in this state or in the district of Columbia, until the said 19th of June 1854. And upon the said bonds being given and approved j as aforesaid, and filed in the clerk’s office, the said plaintiff was to be delivered ! up to the defendant on demand. *The court further decreed that the sheriff of Henrico continue to hire out the plaintiff until the conditions aforesaid should be complied with, and that the said sheriff apply the proceeds of hire which might accrue, to the discharge of such jail fees as might have been incurred by the plaintiff while in confinement in the jail of the county of Henrico; that in the next place the sheriff, out of the same fund, pay and satisfy all the costs and charges which might have been incurred by the plaintiff in the prosecution of this suit; and that he pay the balance, if any, to the defendant Williams, when he should have complied with the said requisitions. And the cause was retained for further proceedings, with liberty to either party to apply from time to time for such other or further orders as they might be advised were necessary or proper.

Rrom this decree an appeal was allowed, on the petition of the defendant Williams.

Lyons for appellant.

The appellee is now, and will be until 1854, as mitch the slave of the appellant as if he were a slave for life. Being a slave, he can have no right to sue his master in the courts of Virginia.

The circuit court has not only taken jurisdiction of the suit, but, without the least evidence to susfain the allegation that the appellant intended to sell the appellee for a longer period than 1854, it has required the appellant to give bond an'd security for the production of the appellee before the court on the 19th of June 1854. The record shews that a bond for protecting the appellee’s future right of freedom was entered into in Maryland; and according to the bill, the appellant was passing through the state of Virginia with the appellee, on his wajr to Charleston in South Carolina. Now if the jurisdiction of our tribunals was not ousted by the action in Maryland, neither would the jurisdiction of the courts of North and South Carolina, or of the courts *of any state through which the appellant might pass with the appellee in his possession, be taken away by the action of the circuit court here; in each and every state a similar bond might be required. Who is to sue upon such bond, and take the benefit of it in case of forfeiture? Sawney v. Carter, 6 Rand. 173, and Stevenson v. Singleton, 1 Leigh 72, shew that no contract between master and slave, however clear and positive, and even though performed by the slave, can be a ground of action against the master. The bond here, it is true, is to be taken to the commonwealth. But if the slave cannot sue upon a contract with his master, neither can he be the relator; and there is no other person who can have any interest in the matter. Besides, if, after the expiration of the period of servitude, the appellee should be alive and capable of suing, ! these facts would prove that the appellant had not deprived him of his right to freedom. Again, the bond of the appellant will bind him absolutely to produce the appellee to the circuit court on the 19th of June 1854. The act of God (as the death of the slave) or the act of the enemy (as deportation) might save the penalty of the bond: but suppose the appellee should run away or be stolen from the appellant within the period of servitude, without the consent or knowledge of the appellant, and the fact should not be capable of being proved (which might well happen); or that the appellee should be seized and sold under execution for a debt of the appellant, and removed out of his reach by the purchaser; would not the bond be forfeited by the appellant’s failure to produce the appellee? And upon such forfeiture, to whom is the-penalty to enure? Can the commonwealth of Virginia take the benefit of it?

The order of the circuit court further directs, that on the appellant’s failure to give the bond required, the appellee shall be hired out, and the hire (or so much as may be necessary) applied to pay the expenses of *this proceeding by the slave against the master. The decree-could not be sustained, though there were no other objection to it but this.

H. A. Claiborne jr. for the appellee,

referred to the cases cited in 2 Rob. Pract. 227, as to the right of a remainderman of personal property to require security frotn the tenant for life, for the preservation of the property, and its production when the period of enjoyment should arrive; and to the opinion of chancellor Taylor in Mortimer v. Moffatt & wife, 4 Hen. & Munf. 503. He also cited and relied upon the-recent case of Anderson’s ex’ors v. Anderson, 11 Leigh 616.

He called the attention of the court to the fact, that the order of the circuit court required the appellee to give bond and security, conditioned for his continuing-faithfully to serve the appellant, until the expiration of his period of servitude. And he said, that as to hardship in the requisition of bond and security, it was obviously much greater on the appellee, a friendless slave, than on the appellant.

Lyons in reply.

The power of the court to protect the rights of the remainderman is exercised by analogy to its jurisdiction in cases of waste of real estate. Such rights in personalty are always capable of being measured by a pecuniary equivalent, and are therefore sufficiently protected by personal security for the forthcoming of the property; which security, in case of failure to have the specific property forthcoming at *414the period designated, enures to indemnify the remainderman by affording him an equivalent in damages. Further, if a chattel be removed from the jurisdiction, it is thereby placed beyond the reach and power of the remainderman; there is a separation between him and his property, and he is consequently exposed to the danger of losing it. A title to freedom in futuro is ^'analogous in none of these respects to a remainder in property. Its value cannot be measured by a pecuniary equivalent: if it could be so measured, still the equivalent would in no shape enure to the benefit of the injured party: and though removed from the state, the party will be capable, as soon as his right to freedom accrues, of asserting and protecting it as well in one part of the United States as in another; the property and the proprietor being in such case one and indivisible.

Adverting to the case of Anderson’s ex’ors v. Anderson, 11 Leigh 616, he pointed out the difference between the terms of the will in that case, and the terms of the will in this; and also remarked that there the suit was brought, not by the infants themselves, who were slaves in prassenti, but by their mother, who was a free woman.

BALDWIN, J.,

delivered the following as the resolution of the court:

The court, without deciding what relief (if any) the appellee would be entitled to upon the case made by his bill, if sustained by sufficient proofs, is of opinion, that it does not appear from the evidence in the cause, that the contemplated removal by the appellant of the appellee beyond the limits of the commonwealth, was with intent to defeat the appellee’s right to freedom when the same shall accrue, or upon any claim to hold or sell him as a slave beyond that period: The decree is therefore reversed, and the cause remanded, with directions to dissolve the injunction, restore the appellee to the possession of the appellant or his agent, and, after disposing of the subject of hires, with the proper deductions for costs and charges, to dismiss the bill.