#### Thomas Rumph, guardian, *vs.*Mart S. Waring, adm’x.

Equity has no jurisdiction to sustain a hill to establish the freedom of a person of color, filed by his guardian against one who has him in possession.

BEFOBE DUNKIN, OH., AT COLLETON, FEBRUARY, 1855,

Dunein, Ch. Isaac Perry of St. Paul’s Parish, died in 1818. By his will, dated 15th August, 1818, he directed *inter alia,*as follows, viz: “ It is further my will, that my two mulatto boys, named Harry and Richard, should be free, and for this purpose I hereby specially impower by this deed or will, my executors hereinafter named, to manumit, emancipate and set free, by a due course of law, the above two named mulatto boys, Harry and Richard, in the same manner, and to all intents and purposes, as though it was done and executed by myself.” Josiah Perry, son of the testator, proved the will on 12th March, 1819, and he alone qualify thereon as executor. Col. Richard Perry, (a witness examined by the commissioner on interrogatories prepared by the parties,) testified that he is seventy-one years of age, and is the cousin of Josiah Perry, (since deceased,) the son and executor of Isaac Perry; that in 1820, the witness, with others, was summoned by John B. Yaughan, (a Justice of the quorum,) that they, to wit, Morton Lindsey, Charles Tumblestone, Geo. Johnston, John Miles, and the witness, examined the boys, Harry and Richard, (the former being then about seven or eight years óf age,) and after examination they signed the certificate required by law; and that Josiah Perry, as executor of Isaac Perry, deceased, executed a deed, emancipating the said boys, Harry and Richard ; that on the same occasion the witness emancipated two of his own slaves, Mary and Selina; that after Josiah Perry executed the deed of emancipation for Harry and Richard, he handed it to the witness, and he and Josiah Perry went together to the register’s *137office in Colleton, and that the certificate and deeds were placed in the register’s hands, to be recorded, who gave a receipt for the same, (which witness produced, and which forms part of his evidence.) The original receipt was proved to be in the hand-writing of James Smith, who was the deputy of Richard Singleton, at that time clerk of the Court of Common Pleas for Colleton district, and runs as follows : ■

“ Received of Richard Perry, and Josiah Perry, two instruments of emancipation, setting free a negro woman named Mary, and her child, Selina, also setting free two boys, Richard and Harry. Received, in clerk’s office, for recording, 22nd November, 1820.

(Signed) “ Jambs Smith, for

Richard SingletoN, C. C. P.”

This witness further testified, that a short time after the emancipation, he heard that the papers had been lost; and being anxious about those in whom he (the witness) was interested, he made inquiry at the register’s office, and ascertained .that they were not to be found; that the witness then procured another certificate, signed by the same parties, except Morton Lindsey, who had died in the meantime, which he lodged with the register, and took his receipt for the same; “ that his object was to ask the assistance of equity to correct the mishap which was done for those he represented.” In connection with this evidence, was offered a bill in this Court, filed by the defendant’s testator, Joseph Joor Waring, deceased, as guardian, and in behalf of a negro woman- named Mary, and her two children, Selina and Sarah, against the witness, Richard Perry. It was filed with two exhibits, A. and B., on the 19th November, 1823 ; exhibit B. is a copy of the receipt of the deputy clerk above recited, and exhibit A. is a subsequent certificate of the surviving magistrate and freeholders, (of whom it appears Josiah Perry was one.) The answer admits all the allegations of the bill in relation to the emancipation *138of Mary and Selina, the loss of the papers, &e. It was evidently an amicable proceeding, conducted by the same lawyer; and on 21st May, 1824, Chancellor Gaillard, after reciting that the facts had been substantiated, decreed that the defendant should execute another deed to take effect as of the date of the original deed of emancipation.

In corroboration of this testimony, an original certificate was given by the Magistrate and surviving freeholders, in relation to Harry and Eichard. This certificate was produced by Jacob K. Linder, Esq., the present clerk of the Court of Common Pleas for Colleton district, which he deposed was found by him among the records of his office; that he had searched for the deed of emancipation, and the certificate, but had been unable to find them. The certificate of the freeholders produced by him, bears date April 11th, 1821; that of the magistrate, July 12th, 1821, and they were recorded in the clerk’s office 7th December, 1821. They are as follows, to wit:

“We, the undersigned, freeholders of St. Paul’s Parish, do hereby certify, that on the 17th November, one thousand eight hundred and twenty, we, together with Morton Lindsey, (since deceased,) were summoned by on© John B. Yaughan, Q. U., to examine two mulatto boys, one named Eichard, the other named Harry, late the property of Isaac Perry, deceased, who, by his last will and testament, directed his executor, Mr. Josiah Perry, to emancipate and set free the said two boys, Eichard and Harry, according to law; the said Josiah Perry being examined on oath relative to the character of the said two boys, Eichard and Harry, we found that they were of good character, and capable of gaining a livelihood by honest means. We therefore agreed, together with the before mentioned Morton Lindsey, that the above mentioned two boys, Eichard and Harry, should have a certificate to that effect, which was drawn up accordingly, and signed by each of us, together with the above mentioned Morton Lindsey. And that the said Josiah Perry did execute a deed of emancipation of the said two boys, *139Richard and Harry, and signed, sealed, and delivered the same, together with our certificate. We therefore declare that the said Richard and Harry were legally emancipated, and set free from slavery, on the 17th day of November, 1820.

(Signed) Richard Perry,

George Johnson,

Charles Tumblestone,

John Miles.”

“Dated April 10th, 1821.”

Then follows, on the same sheet of paper, the certificate of the magistrate:

“ This is to certify, that the above mentioned certificate and deed of emancipation were duly executed before me, on the 17th day of November, 1820 ; and the said two boys, Richard and Harry, were legally emancipated and set free from all slavery.

(Signed) John B. Yaughan, Q. U.”

“ Dated July 12th, 1820.”

In November, 1820, the boy Harry was (as stated heretofore) seven or eight years old. From that time, and during the life-time of Josiah Perry, the executor, (who died in 1824,) Harry resided either with his aunt, a colored woman named Tenah, belonging to one Joseph Brownlee, or with the executor, Josiah Perry. Some time after his death, but at what time particularly is neither stated nor proved, Joseph Joor Waring, (defendant’s testator,) whose then wife was a daughter of Isaac Perry, (the former owner of Harry,) and sister of Josiah Perry, his executor, sent for Harry, who continued to reside with him until his death, in December, 1852. After the decease of Joseph Joor Waring’s former wife, he intermarried with defendant, who is his widow, and administratrix of his estate. In May, 1853, Harry left her possession, when he was taken by her directions in July of the same year, he having in the meantime, through his guardian, by letters of June, 1853, *140insisted on bis right to freedom. The defendant pleads in bar, that after such a great lapse of time she has a right to presume either, that the deed, and certificate of emancipation, if ever executed, which she does not admit, never were delivered ; or if delivered, that by reason of some irregularity attending the ceremony of emancipation, they were regarded as void, and Harry was seized by the intestate as a slave; or that the said negro was afterwards levied on as part of the estate of Isaac Perry, deceased, (his former* owner,) and sold to pay his debts; and that the possession of Harry as a slave by the intestate for such a length of time, extinguished his claim, if he ever had any, to freedom, and vested a complete title in the intestate.

In reference to the character of Joseph Joor Waring’s possession, the testimony of Col. Richard Perry is, that he had conversed with Mr. Waring upon the subject — that he was aware of Harry’s being set free by the deed, which deed he knew was lost; that Harry resided with Mr. Waring until his death ; that the last conversation which, the witness had with Mr. Waring upon the subject, was, as he thinks, some six or seven years ago, when Mr. Waring said distinctly that “he did not consider Harry a slave.” Col. Benjamin Perry also proved that he (the witness) was a son of Isaac Perry, deceased, and the brother of Josiah Perry, (the executor,) as well as of Josiah Joor Waring’s former wife, and that Mrs. Bass was another sister: that Harry was always regarded as free by every one. Josiah B. Perry, Esq., proved that the year before the death of Joseph Joor Waring, either in 1851 or 1852, he met him in Walterboro, and had a conversation with him on the subject of Harry; that he informed Mr. Waring that Mr. Bass, whose wife was a daughter of Isaac Perry, (deceased) had written to him to inquire whether he, Mr. Waring, was deriving any benefit from Harry’s services, for if so, he (Bass) had an equal right; that in reply, Mr. Waring referred the witness to the will of Isaac Perry, deceased; that witness accordingly examined the will, and on meeting Mr. Waring afterwards, he said *141to him that he,had examined the will, and neither of them had any claim. Nothing more was said. All the evidence taken-at the hearing accompanies this decree. No part of the conduct of Mr. Waring appears to the Court inconsistent with the declarations thus made, or with his acknowledgment of Harry’s right to freedom — or that his enjoyment of his services* was intended to bar or extinguish that right. At the same time it is proper to remark that the defendant was personally a stranger to all these transactions, and under the circumstances, representing as she does the estate of an intestate, she may well have required strict proof of the claim set up. The evidence establishes the execution and delivery of the deed of emancipation, on 17th November, 1820, with all the pre-requisites and formalities prescribed by the Act of 1800, and that the papers were duly lodged in the office of the clerk of the Court of Common Pleas. According to the decision in *Monk*vs. Jenkins, *2*Hill, Ch. 9, the right of the plaintiff was thereby complete. The subsequent loss of the papers, as of any other muniment of title, however it may embarrass the proof, has no effect upon the right.

But the defendant, after setting forth all the circumstances detailed in her plea, and insisting on the same as' precluding the right of the plaintiff, interposes in the conclusion of her answer an objection to the jurisdiction. This is the only part of the ease which, after hearing the evidence, has occasioned any embarrassment. In the case of her intestate, Joseph Joor Waring, guardian of Mary and Selina, against Richard Perry, Chancellor Q-aillard, in 1824, entertained the bill and granted relief. But the question of jurisdiction was not made, and both parties were evidently desirous that the Court should act. *Monk*vs. *Jenkins*was heard ten years later. The Circuit Chancellor entertained the cause so far as to over-rule both the pleas interposed by the defendant, but was of opinion that the bill made a proper case of relief at law, and therefore dismissed the same. In delivering the judgment of the Appeal Court, *142Chancellor Harper says, “ the appeal is only from so much of the decision of the Chancellor as over-rules the pleas of the defendants. In this respect we agree with the Chancellor.” If the plaintiff by his own showing, has a plain and adequate remedy at law, he must appeal to the ordinary tribunals for redress. If the plaintiff’s ward is a free person of color, his arrest and detention by the defendant is a trespass, neither more nor less. By the Act of 1712, questions of freedom were determined by the Governor and Council, and by the Act of 1721, this Body was also vested with the powers of a Court of Chancery, which they exercised until the revolution. But by the Act of 1722, it was declared, that when a negro, mulatto, &c., shall lay claim to his or her freedom, the same shall be finally heard and determined by the justices of the General Court, or the County Court, and not elsewhere. 7 Stat. 371. So the law stood until 1744, when the Act was passed, defining with great particularity the mode of proceeding in the Court of Common Pleas, in such cases, under which not only the plaintiff’s right to freedom might be established, but damages awarded for any injury sustained. On the other hand, in case of failure, the Court is authorized to affix a proper punishment on the ward of the plaintiff for his false clamor. It is true, there is a proviso in the Act, which the plaintiff’s solicitor submitted, might well sanction the proceedings of this Court. It is as follows : “ Provided, also, that nothing in this Act shall be construed to hinder or restrain any other Court of Law or Equity in this province from determining the property of slaves, or their right of freedom, which now have cognizance or jurisdiction of the same, when the same shall happen to come in judgment before such Courts, or any of them, always taking this Act for their direction therein.” This proviso, it appears to the Court, applies only in cases where the inquiry arises collaterally or incidentally, and so the language of the proviso implies. It may be that the person whom, from his color, the law would presume to be a slave, is in the partial *143enjoyment of freedom, molested by no one, and therefore could maintain no such proceedings as is contemplated by the Act. But it may be necessary for him to sue for a breach of contract, or institute proceedings in this Court for specific performance ; or he may have died, and his representatives may sue. In all such cases, it is competent for the defendant to question his *status,*and rely on the presumption of law. The proviso reserves to the Courts, in which the question is thus made collaterally or incidentally, the power to determine the inquiry, “ always taking the provisions of *the*Act for their direction therein as, for instance, that special matter may be given in evidence under the general issue; that judgment shall not be stayed for any defect in the proceedings, and that the burden of proof shall be on the party laying claim to freedom, &c. But where a defendant has the custody or possession of a negro, or mulatto, whom he claims as his property, but who alleges his right of freedom, the law affords a plain and adequate remedy, and the Court of Common Pleas is the appropriate forum for the adjudication of the issue.

Although the Court is of the opinion that the application of the plaintiff should be addressed to another tribunal, yet from the views heretofore taken of the evidence, it is plain this application is not intended to be prejudiced. It is therefore ordered and decreed that the bill be dismissed, but without prejudice, and without costs.

The complainant appealed and moved this Court to reserve the decree, on the grounds :

1. Because his Honor erred in deciding that the Court of Equity had no jurisdiction in this case, whereas it is submitted that the complainant had a right to seek relief either at law or equity, and that the Court of Equity could give more adequate relief.

*1442. Because the decree of his Honor is, in other respects, contrary to law.

*Oarn,*for appellant.

*De Treville,*contra.

*Per Curiam.*

This Court is entirely satified with the proof of the freedom of the persons in whose behalf this suit is brought; but is compelled reluctantly to deny the relief sought for want of jurisdiction. The decree is affirmed, and the appeal dismissed.

Johnston, Donkin, Dakgan and Wardlaw, CO., con- - curring.

*Appeal dismissed.*