#### *Parks v. Hewlett &c.

July, 1838,

Lewisburg.

(Absent Brooke, J.)

Scroll — When It Has the Force of a Seal. — A scroll affixed to an instrument has the force and obligation of a seal, when it appears by the instrument that the person making the same affixed the scroll by way of seal.

Same — When Affixed by Way of Seal* — Case at Bar.— Where it is stated at the foot of an instrument of emancipation, that it was signed, sealed and acknowledged in presence of two attesting witnesses, and the instrument is afterwards duly *184proved by the witnesses in the county or corporation court, it sufficiently appears that the person making the instrument affixed the scroll by way of seal.

Emancipated Slaves † — Liability of Increase for Debts of . Emancipator. — Though a slave emancipated by the owner is liable to be taken by1 execution to satisfy a debt contracted by the owner before making the emancipation, yet if the slave be a female, and have children after the emancipation, the children who are born while the mother is enjoying freedom are not liable to be taken for any such debt.

Suit for freedom in the circuit court of Kanawha county, by William Hewlett and Taylor Hewlett, suing in forma pauperis by Eavinia their mother and next friend, against Andrew Parks.

It appeared at the trial that Edmund Edrington had executed an instrument in writing, purporting to emancipate and set free his slave Eavinia, which concluded in these yvords: “In testimony whereof, I have hereunto set my hand, this 21st day of October in the year of our Eord one thousand eight hundred and seventeen.

Edmund Edrington (Seal.) Signed, sealed and acknowledged in presence of us

Alex’r R. St. Clair, Walter H. Tapp.”

The instrument so attested was, on the 17th of November 1817, proved by the two witnesses in the corporation court of Staunton. The woman Eavinia mentioned' in the instrument was the mother of the plaintiffs. *The plaintiff William was born about one year, and the plaintiff Taylor about three years, after the execution and recording of the instrument. Both plaintiffs were registered as free persons, in the hustings court of Staunton, on the 8th of July 1823.

On the 25th of June 1825, Andrew Parks obtained a decree for a sum of money against Edmund Edrington and John Temple ; and soon afterwards he sued out an execution on the decree, and levied it upon the plaintiffs, on the ground that the debt due him was contracted by Edrington before the emancipation was made; that the woman Eavinia, being emancipated after the debt was contracted, was liable to be taken by execution to satisfy it; and that her children, born after the emancipation, could not be more exempt than herself.

The foregoing facts were stated in a special verdict, which found also facts in relation to the debt, to enable the court to determine whether it was contracted before or after the emancipation ; but that question being immaterial in the view taken of the case, it is unnecessary to set out those facts.

The circuit court adjudged the law upon the special verdict to be for the plaintiffs ; and a supersedeas was allowed to the judgment.

Baldwin and Summers for plaintiff in error.

B. H. Smith for defendants in error.

*

Scrolls — When Affixed by Way of Seal. — In Virginia, by statute (1 Rey. Code, p. 510, § 94; Va. Code 1887, §2841), it is provided: “Any writing, to which a natural person making it shall affix a scroll by way of seal, shall be of the same force as if it were actually sealed ” Under this statute, the question naturally arises. When is a scroll affixed “by way of seal”?

Where a writing is required by law to be under seal in order to be effective, it is not necessary for a scroll affixed to the signature of the grantor to be recognized as a seal in the body of the writing in order for such scroll to be regarded affixed “by way of seal.” In such a case, the instrument is considered under seal (or, in other words, the scroll is considered affixed “by way of seal”) if the instrument be acknowledged or proved in order to authenticate it for recordation, although the scroll is not recognized in the body of the instrument. Thus, in the principal case, an instrument of emancipation— which could only be effected by deed, and was wholly inoperative until recorded upon proof or acknowledgment as the act required — had a scroll affixed to the signature. This scroll was not recognized in the body of the instrument, but the attesting clause purported that it was sealed as well as delivered, and it was proved by the subscribing witnesses in court and admitted to record. It was held that the instrument was a sealed instrument, for it sufficiently appeared that the grantor affixed the scroll by way of seal.

Again, in Ashwell v. Ayres, 4 Gratt. 283, an instrument purporting to convey land (which must be under seal to be effective) had a scroll attached to the grantor’s signature. The scroll was not recognized as a seal either in the body of the instrument or in the attestation clause, but the paper had been acknowledged in court by the grantor as his deed and admitted to record. It was held that such acknowledgment was a sufficient recognition of the scroll as a seal to make the instrument a deed. See also, Pollock v. Glassell, 2 Gratt. 439, 454, citing the principal case.

But a different rule prevails where the writing is not required by law to be under seal. In such cases, it is the .settled doctrine that the scroll is not affixed by way of seal unless it be acknowledged as a seal in the body of the instrument. See *foot-note*to Clegg v. Lemessurier, 15 Gratt. 108, for a collection of authorities supporting this proposition. In Clegg v. Lemessurier, 15 Gratt. 108, 119, the rule was thus stated: that in cases of contract in writing which might have been intended to be, indifferently, sim-

pie contracts or sealed instruments and in which the question is as to the character of the instrumen t and its legal effects and consequences, the fact that a scroll may be affixed to the name of the maker with or without the word “seal” written within is not of itself such a recognition of the scroll for a seal as will make the writing a sealed instrument; and that evidence dehors the paper cannot be admitted for the purpose of showing that it was in fact intended to be such an instrument. Tn this case, Judge Lee, delivering the opinion of the court, said that, while he concurred in the result reached by the principal case, and Ashwell v. Ayres. 4 Gratt. 283, these cases can be readily distinguished from such cases as Baird v. Blaigrove, 1 Wash. 170; Austin v. Whitlock, 1 Munf. 487; Anderson v. Bullock, 4 Muuf. 442; Jenkins v. Hurt, 2 Rand, 446; Peasley v. Boatwright, 2 Leigh 195; Turberville v. Bernard, 7 Leigh 302; Cromwell v. Tate, 7 Leigh 301: for, in each of these latter cases, the writing might have been indifferently an obligation under seal or a simple contract, and neither acknowledgment before witnesses or in court nor recording was necessary to make the writing operative.

And in Bradley Salt Co. v. Norfolk, etc.. Co., 95 Va. 461, 468, 28 S. E. Rep. 567, where it was held that an actual seal affixed to a contract for the sale of personal property must be recognized in the body of the contract in order to make it a sealed instrument, Judge Buchanan, in delivering the opinion of the court, said: “There is a class of cases like *Parks v.*Hewlett, 9 *Leigh*511; Pollock v. Glassell, 2 Gratt. 439; and Ashwell v. Ayres, 4 Gratt. 283, referred to and explained in Clegg v. Lemessurier, 15 Gratt. 115, etc., in which the instrument under consideration was required by law to be under seal in order to be effective, where a different rule was applied. Nothing that has been said in this opinion is intended, in any wise, to refer to or affect the rule in that class of cases.”

While all subsequent cases seem to approve the decision reached in the principal case, yet some of the views expressed by Judge Parker, in deliyering the opinion of the court, have been questioned. In Clegg v. Lemessurier, 15 Gratt. 116, it is said: “It is true that Judge Parker, in his opinion in *Parks v.*Hewlett, seems strongly inclined to the views which he must have held when he decided the case of Cromwell v. Tate (7 Leigh 301). which was after-wards reversed and he uses various expressions which might embrace promissory notes as well as such instruments as that he was then considering; and he refers to the fact that in none of the previous cases relied on, was there any proof that the instrument had been actually sealed or scrolls annexed by way of seals. But it appears that he had not seen the opinion in the case of Cromwell v. Tate, in which all the judges had concurred, and it is impossible to suppose that the same judges who had so recently decided that case intended to disturb the principles on which it rested as to cases of that kind. No allusion whatever is made by any judge who delivered an opinion to any change of views in any respect, and it is plain they regarded the case they were considering as belonging to a distinct class and indeed we are informed by Judge Parker that he had been assured by the judges who were present when Cromwell v. Tate was decided that there was nothing in their opinions affecting the *184question in the case of *Parks v. Hewlett.*Judge Brockenbrough and Judge Cabedd considered the case as clearly distinguishable from all the previous cases, and Tucker, president, who had delivered the opinion of the court in Oromwell v. Tate, contented himself with concurring in the result to which Judge Parker had come, for the reason, no doubt, that there were some views presented in Judge Parker’s opinion which to some extent conflicted with the opinion in Cromwell v. Tate which had not been seen by Judge Parker when *Parks v. Hewlett*was decided.”

And in Reusens v. Lawson, 91 Va. 246, 21 S. E. Rep. 347, the following language of Judge Parker in the principal case is disapproved by Buchanan, J.; “If, in the attestation of an instrument, it is stated to have been sealed in the presence of witnesses, it will, in the absence of evidence to the contrary, be *presumed*to have been sealed, although no impression appear on the parchment or paper.” Judge Buchanan says: “In the absence of other facts, I do not think such a paper as Judge Parker describes could be held in this state to be a sealed instrument.”

See further on this subject, monographic *note*on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; monographic *note*on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.

†

Emancipation of Slaves — Condition Subsequent.— To the point that if the owner of slaves emancipated them he could annex no conditions subsequent, repugnant to the freedom conferred, the principal case is cited iu Forward v. Thamer, 9 Gratt. 537, 539, and *foot-note.*

Slaves — Distinction between Gift of Freedom and Gift of Property. — In Wood v. Humphreys, 12 Gratt. 339, 340, Moncure, J., discussing the question as to whether the doctrine of perpetuities applicable to bequests of personal chattels applied to a bequest of freedom of slaves, said: “There is a manifest difference between a gift of freedom and a gift of property. In some respects they are similar, but in most respects different. Many of our judges have admitted and commented upon this difference. Many of our decisions are founded upon it. Maria v. Surbaugh, 2 Rand. 228, is founded upon it; for the plaintiff, in that case, would not have remained the slave of the testator if there had been a bequest of the mother in remainder, instead of a bequest to her of freedom in futuro. *Parks v.*Hewlett, 9 *Leigh*511, is.founded upon it; for if the female slave in that case had been given to another person instead of being emancipated, her issue born afterwards would have been liable for the debts of the donor, instead of being exempt from such liability.”

The principal case is also cited in Jincey v. Winfield, 9 Gratt. 713.

PARKER, J.

The first question naturally arising in this case, and to be first decided, is whether the instrument of writing executed by Edrington, purporting to emancipate Eavinia the mother of the defendants in error, which is dated the 21st of October 1817, and was recorded in the corporation court of Staunton on the 17th of the next month, be or be not made in pursuance of the act of assembly, 1 Rev. Code, ch. 111, § 53, p. 433.

*The objection is, that it is not a sealed instrument ; and by the act it is only made lawful “for any person, by his or her last will and testament, or by any other instrument in writing, under his or her hand and seal, attested and proved in the county or corporation court by two witnesses, *185or acknowledged by the party in the court of the county where he or she resides, to emancipate and set free his or her slaves.” This act, it is conceded, must be strictly complied with, and to effect emancipation, the instrument must be under the seal of the grantor.

That under which the defendants in error claim, is in the common form of deeds of emancipation, beginning “Know all men by these presents,” and signed by Edmund Edrington, with a scroll annexed, in which the word seal is written. It is subscribed by two witnesses, who certify that it was signed, sealed and acknowledged in their presence, and upon their evidence it was duly admitted to record; but it concludes, “In testimony whereof I have hereunto set my hand this 21st day of October 1817,” without saying, in the body of the instrument, any thing about a seal.

if the instrument, having a scroll to it, had been acknowledged in court by the party (as the act allows) instead of being proved by the witnesses, I think there could have been little question that it would have been a sufficient recognition of the scroll as a seal, to give it the force and obligation of a sealed instrument. All that is required by the common law, or by our act of assembly, is, that the impression in the one case, or the scroll in the other, should be added with intent to seal; and if the party shall acknowledge before the court an instrument having a scroll, as his act and deed, nothing more can be required. The act of 1788, which our courts have decided to be in affirmance of the common law of Virginia (Jones & Temple v. Logwood, 1 Wash. 42 ; Buckner v. Mackay, 2 Leigh 488,) declares that *“any instrument to which the person making the same shall affix a scroll by way of seal, shall be adjudged and holden to be of the same force and obligation as if it were actually sealed.” It would be in derogation of that act, to decide that a scroll, affixed with the view of perfecting an instrúmentrequired by law to be under seal, and acknowledged by the party in court with the intent of complying frith the law, was not a seal, because it was not called such in the body of the instrument ; and it would be equally unreasonable to predicate the same thing of an instrument proved by witnesses who attested the sealing as well as the signing and delivery. The common law does not require that the party should any where in the instrument speak of a seal, but only that it be sealed, and the sealing proved. In Sheppard’s Touchstone, a book of'the highest authority, it is said (vol. 1, p. 55, Atherly’s edi.) “A deed is good, albeit these words in the close thereof, in cujus rei testimonium sigillum meum apposui, be omitted, and albeit there be no mention made in the same that the deed was sealed and delivered; so in truth it be duly sealed and delivered, and the sealing and delivery be proved.” Here, then, is an express authority that the proof of a seal is sufficient, although no mention is made of it in the body of the instrument; and as scrolls are placed by our law on precisely the same footing as seals, when affixed by way of seal, I take it to be clear law that a scroll may be proved to have been so affixed, without mention of it in the body of the instrument. The true doctrine is stated with great clearness by chief justice Tilghman in the case of Taylor v. Glassel, 2 Serg. & Rawle 504. “There are two principles,” says he, “well founded: one, that although-in the body of the writing it is said that the parties have set their hands and seals, yet it is not a specialty unless it be actually sealed and delivered : another, that if it be actually sealed and delivered, it is a specialty, although no mention be made *of it in the body of the writing. The fact, and not the assertion, fixes the nature of the instrument.” Thus, to constitute a sealed instrument, there must be a seal or scroll affixed, and some recognition of it in the instrument, or some evidence of it aliunde ; but it can never be maintained that such evidence, whether by the proof of witnesses or acknowledgment of the party, will not supply the place of such recognition. If the maker says merely, “ witness my hand ;” if the attestation of the witnesses takes no notice of the sealing; if there are expressions in the instrument not usually found in deeds, but common in simple contracts, as if it commenced “ Eor value receivedl promise” &c. all these are circumstances (and there may be others) affording strong presumptive evidence that the partv did not intend to bind himself by deed, and has not so bound himself. When some of these circiimstances exist, and especially when all concur, they may outweigh the mere circumstances of a scroll being annexed, which might be so easily placed there after the execution of the writing; but this presumption, like any other, may surely be rebutted by proof of the fact that the scroll was annexed by way of seal, and by the maker. Thus, suppose he says at the time, “I affix this scroll as my seal,” or within the scroll he writes the word “ seal,” and then delivers it as his deed ; I am at a loss to conceive how any court or jury could resist the conclusion that it was *k*sealed instrument.

It is said, however, that the decisions in this court are inconsistent with this opinion : and there may be some loose expressions to be found in them, giving countenance to the objection. But when the cases themselves are carefully examined, I am persuaded they will .not be found to support it. They are the following : Baird v. Blaigrove, 1 Wash. 170; Austin’s adm’x v. Whitlock’s ex’ors, 1 Munf. 487; Anderson v. Bullock &c., 4 Munf. 442; Jenkins v. Hurt’s commissioners, *2 Rand. 446 ; Peasley v. Boatwright, 2 Leigh 195, and a late case not yet reported.* These cases, except the last, I have critically scanned ; and by giving the facts of each, with the opinions of the judges, it would be easy to shew that they do not exclude proof aliunde of the sealing of the instrument. But this would swell my opinion to an inconvenient length ; and I must content myself with a few general observations respecting their scope and effect. In all of these cases the writings purported to be signed only. They had *186either no attesting clause, or it was merely in the form “ Teste A. B. &c.” without noticing the sealing. In most of them a consideration is expressed; a circumstance unusual, as the judges say,and unnecessary in specialties, but common in simple contracts of the character of those in question. In none of them was the instrument such as the law required to be recorded, or such as it made available only when sealed ; and in not one was there any proof that the instrument had been actually sealed, or scrolls annexed by way of seal. The court had to judge by inspection of the paper, and by inspection only ; and the judges say that as in its beginning, conclusion and attestation, no mention is .made of its being sealed, and the fact is not otherwise proved, but rendered improbable by other circumstances, the mere accident of a scroll being found was insufficient to shew it was affixed by way of seal, when possibly it might have been added by inadvertence, or afterwards by the holder. Judge Tucker, indeed, in the case of Austin’s adm’x v. Whitlock’s ex’ors, goes somewhat farther; but his observation was not necessary to its decision, since no evidence dehors the instrument was offered, and the case did not turn upon it. The instrument concluded “ witness my hand,” and the attesting witness, who was then dead, had not attested its sealing.

*The case referred to as lately decided and not yet reported may have gone somewhat farther, and (as my judgment in the court below was reversed) I may think, too far. But, as well as I recollect its circumstances, the only one which distinguished it from the previous cases, was the fact that the word seal was written within the scroll. But there were no attesting witnesses, and no proof that the word seal was written by the maker of the note ; and as the judges present who decided it assure me there is nothing in their opinions affecting the present question, I do not feel myself trammelled by it.

Assuming, then, that an instrument of writing, not stated in the body of it to be sealed, may, if it have a scroll, be proved to be a specialty by attesting witnesses to its sealing, notwithstanding it concludes “witness my hand,” the next enquiry is, whether it appears b.y this record, that the scroll was affixed by Edrington as his seal?

The attesting clause (which is a part of the instrument necessary under the act of assembly to the validity of the instrument, unless it is acknowledged in court by the grantor) purports that it was sealed as well as delivered ; and it was proper that mention should be made, by way of attestation, of such sealing and delivery. Sugden on Powers, p. 237. On the proof by the oaths of these witnesses, the deed was afterwards ordered to be recorded. It could not have been legally admitted to record as an instrument of emancipation, unless the witnesses swore that it was sealed, as well as acknowledged and delivered, in their presence. These circumstances amount at least to prima facie evidence that the instrument was duly sealed, and greatly outweigh the single presumption arising from the fact that no notice is taken of it in the body of the writing. A much stronger case is stated by Sugden, in his treatise on powers, p. 236, where he says, on the *authority of Lord Eldon, that~“if, in the attestation of an instrument, it is stated to have been sealed in the presence of witnesses, it will, in the. absence of evidence to the contrary, be presumed to have been sealed, although no impression appear on the parchment or paper.” Here, besides the attestation, something equivalent in general to an impression in wax does appear; to wit, a scroll.

Doubtless, Edrington intended to make this instrument of writing conform to the act of assembly. It does so in all other particulars ; and the witnesses to it declare that it conformed also in the requirement of sealing. This of itself would distinguish this case from all others which have come under the consideration of the court of appeals, and leaves no doubt on my mind that the court below was right in regarding the instrument as a deed of emancipation duly executed.

On the other questions presented by the record, I concur entirely in the views taken by the president, and in the conclusion to which he arrives on the whole case.

BROCKENBROUGH, J.

The emancipation law enacts that a master may emancipate his slave by an “instrument in writing, under his hand and seal, attested and proved in the county or corporation court by two witnesses, or acknowledged by the party in the court of the county where he resides.” The statute respecting seals says, “any instrument to which the person making the same shall affix a scroll by way of seal,” shall be adjudged to be a sealed instrument.

The current of decisions in this court is, I think, that the mere annexation of a scroll will not make it a sealed instrument, but if it shall appear, either from the body of the instrument itself, or from the clause of attestation, that the scroll was affixed by way of seal, it is then a sealed instrument. Although that clause is no part of *the instrument, yet as it is written on the same paper, if it appear from it that the scroll was affixed by way of seal, it is just as good as if the obligor had in the instrument itself declared it to be a seal. In Baird v. Blaigrove, the agreement had a scroll opposite to each signature : the conclusion was “as witness our hands,” and the attestation simply “teste;” neither spoke of the instrument being sealed. President Pendleton said, “The court are not satisfied that this is to be considered as a sealed instrument. It is' in no part of it expressed to be sealed. The attestation is the same as in common simple contracts not under seal.” The irresistible inference is, that if the attestation had been, in different form — if it had recognized the seal, it would have been sufficient.

That position is also to be deduced from the opinions of the court, and particularly from that of judge Roane, in Austin’s adm’x v. Whitlock’s ex’ors, 1 Munf. 487. I am satisfied that it is in no manner impugned by the *187case of Cromwell v. Tate’s ex’or, not yet reported.*

In the case before us, the instrument is signed by Edrington, and has a scroll annexed to his name, in which is written the word seal; but as he does not, in the body of the instrument, speak of it as a seal, this would not do. But the clause of attestation is not simply “ teste,” as in the two cases above mentioned, but is written thus, “ Signed, sealed and acknowledged in presence of us Alex’r R. St. Clair, Walter H. Tapp and on the evidence of the subscribing witnesses it is admitted to record as an instrument emancipating the slave Eavinia and her four children. It was, then, an instrument under Edrington’s hand and seal, as much as if he had placed there a seal of wax.

The next question arises from the proviso, which says that all slaves so emancipated shall be liable to be taken *by execution, to satisfy any debt contracted by the person emancipating them, before such emancipation is made.

Admitting that the debt for which the defendants in error were taken in execution was contracted by Edrington to Parks before the instrument of emancipation was executed (which, however, does not clearly appear from the special verdict) still the question arises whether the afterborn children of the freedwoman can be taken in execution. On the principle that the child follows the condition of the mother, and that the mother became absolutely free by the instrument of emancipation, subject only to the contingent liability of being taken in execution for prior debts, I am of opinion that the defendants in error, being born free, were not liable to be reduced to slavery. On this point I refer to the opinion of the president, in which, and the grounds on which it is founded, I entirely concur.

I am of opinion that the judgment be affirmed.

CABEEL, J.

I have carefully.examined all the reported cases as to scrolls annexed to deeds by way of seals ; and I am perfectly satisfied that this case is materially different from all of them. There is a fact in this case, which is not to be found in any of the former cases. In the attestation by the subscribing witnesses, they expressly state that the instrument was signed, sealed and acknowledged in their presence ; and, as I understand the record, they prove the same thing on oath before the court. The act of assembly gives validity to scrolls annexed by way of seal, without specifying the manner in which such annexation shall be proved. It does not require it to be recognized in the body of the deed. Here it is stated by the subscribing witnesses in their attestation, and is moreover proved by their oaths. I am clearly of opinion that the instrument is a good deed.

*The case of Maria &c. v. Surbaugh, 2 Rand. 228, is, in my opinion, conclusive of this case; and I have nothing to add to the luminous exposition of it, made by the president.

The judgment must be affirmed.

TUCKER, P.

I shall say nothing on the first point in this case, which has been so satisfactorily disposed of by my brother Parker, except to declare my concurrence with him in the result to which he has come.

Taking the instrument of emancipation, then, in this case, to be a good deed, we are brought to the enquiry whether the children of the mother born after the execution of the deed are subject to the creditor’s execution ?

And here let me say at once, that this case must be ruled by the act of assembly, and brought within the operation of the proviso, or the creditor must fail. The case of Woodley v. Abby, 5 Call 336, decided by a divided court, and standing altogether alone, does not form so imperative a rule as to compel us to embrace it with all its consequences. If these cases of emancipation are to be brought within the rules of law as to fraudulent alienations, then emancipated slaves are not only liable to the subsisting debts of the emancipator, but if he was in embarrassed circumstances, they would be chargeable, by a fishing bill, for prospective debts also. I cannot think that such a construction would be obedient to a statute, whose emphatic terms declared that the slave emancipated under it should be as free, to all intents and purposes, as if emancipated by the act itself. Emancipation is not strictly a gift of property. It is the exoneration of a human being from the bonds which our institutions have fastened upon him, and which the beneficence of our times has authorized the master to remove. Still less can I look upon it as a gift without consideration. The considerations moving *to the act are of the gravest character, and but for the proviso in the statute, I should consider the emancipated slave as forever discharged from the creditor’s demand, at least where it has not assumed the character of a direct lien. I shall therefore proceed to consider the case under the law as it now stands.

First, let us see what is the immediate effect of the whole statute upon the condition of the slave. And here it is clear that by the deed of emancipation he is instantly emancipated and set free ; he is, upon its execution, entirely and fully discharged from servitude, and “enjoys as full freedom as if he had been particularly named in the act.” He is entitled immediately to a copy of the instrument of his emancipation, from the clerk. He is at once invested with all the rights of a freeman, except those political rights from which, by other laws, every black is excluded. With the protection of his free papers, he may go where he pleases without question. He is at once entitled to acquire and enjoy property. His person is under the protection of the laws, and he has a right to sue for injuries done to person or to property. He may even acquire lands and hold slaves, and will transmit them by inheritance to his children. If charged with a capital offence, he is tried like a freeman, and the law throws around him the same *188protection of a grand jury, and the same right of challenge to his triers, which the white man enjoys. And all this notwithstanding the proviso ; of which we need no better evidence than this, that were it otherwise, no free negro could have these privileges who claims his freedom since 1792, inasmuch as all have been subject to the operation of that proviso.

Bavinia, then, upon the execution of this deed, became to all intents and purposes free; subject indeed to be taken by execution for the antecedent debts of her master, but still free. Whatever might be the effect *of an execution levied upon her, and a sale under it to satisfy a debt, until such levy and sale she is unquestionably free. If the creditor does not elect to levy the execution upon her-, her enjoyment of freedom is not disturbed. - If, out of the avails of her labour, or by the aid of others, she can discharge the debt, her freedom cannot be disturbed. If an execution is even levied upon her, yet if she can shew that there is other property to satisfy the debt, it will be held liable (Woodley v. Abby, 5 Call 350,) and she will continue to enjoy her freedom, which never can even be suspended until a sale. For even though there be no other means of satisfying the debt, she would not be sold absolutely, but only for such a length of time as would be necessary to discharge it. Patty v. Colin, 1 Hen. & Munf. 519. What would be her state during that time, has not been settled by any adjudicated case. But I should humbly apprehend that in such a case, at least, as that of a temporary sale, though the purchaser would exercise over her the rights of a master, she would not be considered as a slave. If she were so considered, all her acquired property would devolve upon her master, and all her other rights as a freewoman would be annihilated, though her term of service might be but for a year, and though she should at any time be enabled to redeem herself by discharging the debt.

Be this as it- may, Bavinia became absolutely free upon the execution of the deed, subject only to a charge for payment of debts.She never has had an execution levied on her, and if living, she is now free, and has been so ever since 1817. Her status then has always, since 1817, been that of a freewoman, and so still continues. If then her children follow the condition of the mother, according to the maxim “partus sequitur ventrera,” her children must be free, as she was free, when they were born, and has always continued free since, and still so continues, if living. If it be otherwise, it *leads to this singular consequence, that her emancipation is perfected by the sale of them; it is consummated forever (provided there be no further debt) by the satisfaction of this execution by the sale and perpetual servitude of her children, She who was born a slave, and- expressly subjected to the debt, is made free; and those who were born free, and not expressly subjected by the act, are made slaves.'

But it is said that the qualification attached to the emancipation of-Bavinia, of liability to execution, extended to those who were born afterwards in her state of freedom. I think not. We should not extend the proviso of the statute to those whom it does.not expressly embrace, nor should we adopt a principle in direct conflict with what is now the well established law of the land. In Maria &c. v. Surbaugh, 2 Rand. 228, this court decided that the condition of the child was to be determined by the existing condition of the mother at the time of its birth, without regard to any changes in that condition by any possible future event. It decided that a child born in the actual status of slavery of the mother was absolutely a slave for life, although the day after its birth the mother’s enjoyment of her freedom accrued under a deed of long anteriour date. If then the child can derive no advantage from the certain prospective freedom of the mother, shall he be prejudiced, on the other hand, by the uncertain contingency of her subsequent reduction to slavery ? If we mete out equal and impartial justice to all, we cannot affect the child by a possible change of status in one direction, when we deny him the benefit of a certain change in another. We cannot refuse to consider him as following the status of his mother at the time of his birth, when he will thereby become free, since we hold him to that status by which he is made a slave. Accordingly, we find judge Green declaring in Maria &c. v. Surbaugh (and judge Cabell concurred) “ that the *civil state of the children, with all its consequences, is determined by the civil state.of the mother at the time of their birth, without regard to the present obligation of a free woman to serve, or the present right of a slave to be free, thereafter. The sole enquiry is whether, at the time of the birth of the chidren, the mother be in fact slave or free, without regard to what may be her future state.” - And judge Brooke observes that “ the rule that children shall be bond or free according to the condition of the mother, imports the condition at the time of the birth, in exclusion of any future right to liberty ;” and by consequence (I will add) in exclusion of any future obligation .to servitude.

These views might be much enlarged and illustrated; but I shall content myself with what has been said, as presenting the reasons upon which I am clearly of opinion to affirm the judgment.

Judgment affirmed.

*

Cromwell v. Tate’s ex’or, *7*Leigh 301.

*

Reported 7 Leigh 301.