Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-03-04

properly presented in the pleadings. Il is
nowhere alleged, either in the bill or an
swer, that either the colored woman, Lettia
or her daughter Emily, were at any time
slaves of the intestate, or any one else.
The fact appears in the proof and not other
wise in the entire record, and as a general
rule Of Chancery practice a court Of equity
can make no decree on the proof alone,
the facts constituting the case upon which
the decree is sought not having been set
forth either in the bill or answer.
Every decree must be founded on. and
be in conformity 10 the allegations and
proof, and cannot be based upon a fact not
put in Issue by the pleadings But as a
rule Of Chaneery pieadings, the same strict
ness is not required in courts Of equity "a
al law. Cooke IS. Trotier, 10 Yer 213, ZIG;
10 Wheaton l8l l Barber prac. 339; Cum
ningham as. Wood, Hume AZ, 420.
But independent Of this defect in plead
ing, the position assumed in argument, az
applied 10 this Gaze, cannot be sustained.
II is true, as a general proposition, slave
a. the institution existed in Tennessee,
prior 20 the late war, could not hold prop
eriy lie and every thing Of his earnings
belonged 10 his master, and he could not
therefore make contracts which were obi
gatory on himself or the person contracted
with. Winsciesly -. Cambreeling, Yer.
"a; Fletcher 40. the State, & Hum, 256 !;
Jenkins o. Brown, Hum, 299; Hill as.
the State, 9 Yer. 207.
Admitting the principles as recognized
| in the above reciied eases, very different
question ia presented IN the facts and cir
| cumstances Of this case By the common
law there ia no question. but the master
might manumit has own slave by parol or
even by implication from acts IN pals, 2
Black, Com. %. Judge Green while COM
menting on this common law principle, in
the case Of Greenlaw as. Rawlings, 3 Hum.
| %, SAYS: "And in this country, independ-
ent Of statutory prohibitions, the same
| principle exists. No deed or writing Of
any kind il necessary for the purpose with
the masters right In fact, acts IN pals
from which freedom might be implied,
have been held sufficient" Citing 9 John
X, IA IA John 4, 1872; l Cowan's II,
l27 Z John, 81 see, also, Lewis rs.
Simonion, 1876.
But the State has an interest in the
character of It's citizens, and therefore il
has an undouhted right TO regulate by law
the manner Of introducing new members
into its free community. Hence the
Legislature, TO guard against such persons
becoming a charge upon the public, has re-
peatedly provided by law, thatbefore man
omission can become complete, the assent
Of the State must be obtained. But after
the master or owner has parted with the
right Of property in the slave, either upon
terms Of the common law, or by will, or
contract written, OF parole entered into
| directly between the master and his slave,
upon consideration moving from the slave
to the master, or a stranger on behalf of
| the slave, what was the status of such
| slave before the assent Of the State was OBJ.
| tanned 1t is well settled by our courts
| that his relations 10 his former master, or
owner, az we'll as TO the community, are
wholly changed. He owes no service or
labor to his former owner, or to any one
else. And il he voluntarily goes TO
| another State in this condition, where
slavery ia not recognized, he vio-
lates no law of this State or of the
United States, and thereby to all in
tents and purposes becomes free. In this
intermediate state, between freedom and
slavery, or rather az the law formerly ex-
listed, qualified citizenship and bondage,
he has sn inchoate right to freedom, and
no one can interpose any objection TO its
assertion but the State He is free TO enjoy
the fruits Of his own labor, and after the
assent of the State is given to his manu-
mission, he may sue for and collect, note
given him in the interval between the
time at which his former master vested
him with the right of freedom and its
final contamination. And why should he
not have capacity to support trust made
in his favor during this period We think,
especially in court Of equity, there is no
reason or authority TO the contrary. Lewis
as. Lamonton, Hum. 1875. II is clear in
such a case, his freedom by relation must
be held 10 extend TO the time when the
right first accrued; aud this principle, this
court has held, he could after the
consummation Of his freedom, take both
real and personal property, devised to him
by his former cwner, much more can be
support trust In his favor, the trustee as
senting thereto, after he has obtained the
consent Of the sovereign to his manumis-
sion. Simanton, 8 Hume, 1856; Laura Jane
as. Hogan, 10 Hume, 332; McCloud rs.
Raine's extrs as. Childs ct al, Coldwell,
24S; Rose Porter, by next friend, rs. Black
more, admir-, ct al, 2 Coldwell, $50; Nelson
end Smithpeter, exPrs, rs. William and
Horace Smithpeter, 2 Coldwell, 10; Banks
rs. Banks, 2 Coldwell, SAC.
Applying these principles to the case
under consideration, there can be no doubt,
at common law, the acts and conduct of the
interstate towards the women Letitia and
Emily would have been sufficient 20 have
vested them with an inchO0te right
to freedom; and If so, under the
authorities aforesaid cited as well az
the case Of Abram, man Of color, rs. John
son et al. ! Head, 100. Ii il clear that
the acts and conduct Of the intestate, Par
sons, by implication of law vested therein
with a right % manumission, and thereby
conferred upon them the legal capacity TO
support the trust in question, which their
former owner had freely and voluntarily
conferred upon them; and had the instr
tuition of slavery remained in the State il
would probably have been the duty of the
administrator to have applied for their
emancipation. But by the ratification, by
the people, Of the amendments TO the con-
stitution of the State abolishing slavery,
the assent Of the sovereign was given in its
most solemn and imposing form, and the
complainant, Emily, is now fully emanci-
pated, with the privilege of remaining in
the State and she may now, in a court OF
equity, by relation, enforce the rights which
accrued TO her under the trust, while in
quasi state of freedom.
Affirm the decree Of the Chancellor.
MLLIGAN, Judge.