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18. HOPKINS V. THOMPSON June T. 1835. 2 Porter's Rep. 433.

Detinue by Hopkins, the mortgagee, of certain slaves, against Detinue lies by the Thompson, a purchaser under an execution against the mortgagor. mortgagee of personal The court charged the jury that an action of detinue was not property

sustainable to recover possession of the slaves without a foreclosure time of re- of the mortgage.

Judgment for defendant. demption has expi

Per Cur. Hitchcock, J. There can be no doubt but that detired against a third per

nue does lie to recover personal property mortgaged after the time for redemption of the mortgage has expired. By the mortgage, the legal estate, as between mortgagor and mortgagee, is vested in the latter, and he has the right to recover the possession of the property for the purpose of subjecting it to the payment of his debt; and he may proceed either at law or by bill in equity.

son.

19. Hart v. REEVES. March T. 1818. 5 Haywood's Rep. 50. The mort Held by the court, that where personal property (slaves) were gagee cannot follow mortgaged and left with the mortgagor, and were disposed of by the goods mortgaged

him to an innocent purchaser, the mortgagee could not follow into the

them, the mortgage not having been registered in time. hands of the bona fidy vendee

20. of the mortagor.

Young v. Forgey et al. May T. 1817. 4 Haywood's Rep. 11. The hirer Held by the court, that the mortgagee, or hirer of slaves is in the or mortga- place of the master or owner, and must supply necessaries, includfurnish ne- ing medical aid, and such as a good master ought to furnish. So, also, cessaries to slaves. during a temporary sickness, running away, and other casualties,

which the absolute owner would be liable to, before hiring or mortgaging, the temporary hirer must sustain the loss.

(X.) OF DOWER OF SLAVES.*

dower marries a

se

1. M CARG'S EX'R v. CALLICOTT. March T. 1811. 2 Munf. Rep. 501. ; AMBLER AND WIFE v. NORTON, 4 Hen. &. Munf. 23.

Declaration in detinue for slave by the executor of the testator, Where a whose widow is the defendant. The widow was possessed of the widow slaves, as her thirds of the slaves of her former husband ; and slaves as

holding being so possessed, the plaintiff's testator married her, and died. And the question was, whether a widow holding slaves in dower, cond husand marrying again, thereby vests them in her second husband, so slaves bethat upon his death they go to his representatives, or whether she long to the shall have them for the residue of her life. The county court band and gave judgment for the plaintiff ; and on appeal, the judgment was sentatives reversed by the district court, and the plaintiff appealed to this death.

until her court.

The president delivered the opinion of the court, consisting of judges Fleming, Roane, Cabell and Coalter, that the judgment of the district court be reversed, and that of the county court affirmed.

his repre

* Slaves are subject to dower in all the states. Not only are they subject to dower, but the widow's interest in them is protected by statutory provisions. If the husband manumits his slaves, whereby creditors and the dower of the widow are affected, the manumission is so far ineffectual, that the manumitted slaves may be sold for a period, and the proceeds of the sale applied to the creditors of the former owner and his widow. By the Rev. Code of Virg. vol. 1 p. 435., it is declared, that the right of the widow to the dower of slaves emancipated by the husband's will, are saved if she renounce under the will. So, also, the rights of the creditors of the person emancipating are saved. And by the Rev. Code of Mississippi, p. 385, \ 75., it is declared, that slaves emancipated are subject to the right of dower of the widow, and are made liable to execution for the previous debts of the owner. And similar provisions exist in the statutes of the other states. Civil Code of Louisiana, art. 190. ; 2 Litt. and Swi. 1155.; 2 Brev. Dig. 256.; James' Dig. 398.; Toulmin's Dig. 632. ; Prince's Dig. 457.

2.

HYKES & Wife v. White's ADM'R. April T. 1832. 7 J. J.

Marshall's Rep. 134. A wife's es.

Per Cur. Robertson, Ch. J. The only question presented in tate in dow. this case is, whether slaves possessed in right of dower by a feme at er of slaves by a for- the time of her marriage survive to her, or constitute (during her mer husband on

life, and after the death of her husband, whom she married whilst her marriage, vests

she held them as dower in a former husband's estate) a fund for in her hus- the payment of his debts, and for distribution among his heirs.

The question has been expressly decided by this court, in the case of Hawkins v. Craig and Wife, 6 Monroe's Rep. 256. In that case the court decided, that the wife's estate in slaves held as dower from a former hushand, at the time of her marriage with a succeeding husband, vests absolutely in the latter during their joint lives; and in the event of her surviving him, goes, during her life, to his personal representatives. They are assets in the hands of the husband's representatives, if he should die before his wife. Slaves held in right of dower vest in the second husband, and do not survive to the surviving wife, but vest in the representatives of the second husband during the life of the widow, subject only to her right of dower, as part of her husband's estate. And see Fightmaster et al. v. Beasly, 7 J. J. Marshall's Rep. 410. The court said that the interest of a wife in the devise of a slave vests absolutely in the husband.

3. THRIFT v. HANNAH et al. June T. 1830. 2 Leigh's Rep.

300.; S. P. GIVENS V. MANNS, 6 Munf. Rep. 191.; LEWIS v. FULLERTON, 1 Rand's 15.

And her right to manumit them is gone.

Rachel Magruder, being a feme sole, on the 25th of Nov. 1798, made a written instrument of manumission, to take effect in futuro, of certain slaves, Hannah, Kate and others, which instrument is attested by two witnesses, and partly proved by one of them, and continued for further proof in April, 1799. In November, 1799, Rachel Magruder married Thrift, having the negroes in her possession, who was ignorant of the deed of emancipation. Thrift and his wife moved into another county, taking the negroes with them, and holding them as slaves. Mrs. Magruder died in 1811. In 1819 the instrument of emancipation was fully proved. The husband holding the negroes in his possession as slaves, this suit

was commenced. Verdict for plaintiffs ; and Thrift appealed to the Circuit Court of Albermarle, which affirmed the judgment, and he appealed to this court.

The court held, that under the statute, an instrument of emancipation is ineffectual to confer freedom till full probat be made, and takes effect from that act. And in this case, as the rights of the husband attached to the property before the probat, the subsequent full probat did not relate back and divest or effect those rights.

Per Cabell, J. By the marriage of Rachel Magruder in this case, she ceased to be the owner of the slaves, which thereby became the property of her husband; and that event happened before the proof of the instrument; and, of course, before it had taken effect as an instrument of emancipation, it could not take effect afterwards, since none but the owner of the slaves can emancipate them.

(XI.) OF THE DIVISION OF SLAVES. *

1. FITZHUGH et Ux. v. Foot et al. April T. 1801. 3 Call's

Rep. 13.

Held by the court, that an equal division of slaves, in number When a diand value is not always possible, and sometimes improper, when not be

made with it cannot be exactly done without seperating infant children from out separa

ting infant their mothers, which humanity forbids, and will not be counte- children nanced in a court of equity; so that a compensation for excess

from their

mothers, must, in such cases, be made and received in money.

compensa

be made in 2.

money. Jackson v. Macy. Spring T. 1808. Hardin's Rep. 582.

And the Held by the court, that in a suit for the division of slaves, the court will court upon a proper case made out, may order the sheriff to take sheriff to the slaves into his possession and hire them out.

hire them

tion may

out.

By the Rev. Code of Mississippi, p. 50., slaves descending from an intestate may be sold by order of the Orphan's Court, where equal division cannot be made; and persons holding life estate in slaves, or guardians for infants are required to deliver a list of slaves to the Register of the Orphan's court, and also the increase. Page 51. And similar provisions exist in the other states for the division of slaves.

3.

Sneed v. EWING & Wife. April T. 1831. 5 Marsh. Rep.

481.

And they Held by the court, Robertson, J., that slaves in Kentucky canwill be divided

not be carried to, and held in a state where slavery is not permitted,

according to (Indiana ;) yet slaves in this state which belong to a citizen of such the own a state, on his death will be distributed according to the law of diser's domicil.

tribution of personal chattels or moveables in that state.

(XII.) OF REMAINDERS IN SLAVES.*

1. HOLIDAY v. COLEMAN. March T. 1811. 2 Munf. Rep. 162. The court The court held, that the power of a court of equity to rule a will, in its discretion, tenant for life of slaves, or other personal property, to give security compel the that the property shall be forthcoming at his or her death, is to be life to give exercised, not as a matter of course, but of sound discretion, acsecurity to the remain- cording to circumstances. derman.

2. BANK'S ADM'R v. MARKSBURY. Spring T. 1823. 3 Little's

Rep. 275. A devise to

Held by the court, that a gift of slaves by a father to his chiltake effect dren, to take effect after the death of himself and wife, and not after the death of the until then, is valid. devisro is good.

Slaves are considered as personal property, except in Louisiana, and under stat ute of descents in Kentucky. They may be devised, and limited in the same manner as other personal property. A remainder may be limited of them. Keating v. Reynolds, 1 Bay’s. Rep. 80. Even after an absolute gift to the first legatee. Smith v. Bell, 6 Peters' Rep. 66. And see Dott v.Cunnington, 1 Bay's Rep. 453., as to when the words, “heirs of the body," will be considered words of limitation or words pruchase; and consequently, when the contingency will be too remote. The contingency must happen within a life or lives in being, and twenty-one years and a few months after. Barnit's Lessee v. Casey, 7 Cranch’s Rep. 456.; Doe v. Walton, 2 B. & P. 324.; Thelluson v. Woodford, 1 N. R. 357.; Long v. Blackall, 7 T. R. 109.; Roe v. Jeffrey, 7 T. R. 589.; Morgan v. Morgan, 5 Day's Rep. 517.; Anderson v. Jackson, 16 John's Rep. 382.; Scott v. Price, 28. & R. 59.; Dallam v. Dallam’s Lessee, 7 Har. & Johns. Rep.; 220.; Ewings v. Reynolds et al. 3 Har. & Johns. Rep. 144.

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