(C.) OF WHITE PERSONS. 1. BUTLER V. BOARMAN, Sept. T. 1770. 1 Har. & M'Hen. 371. The woman the issue is The petitioners, William and Mary Butler, claimed their free- A white dom, as being descended from a free white woman, called Eleanor, marrying or Irish Nell, who was brought into Maryland by Lord Baltimore, with a slave as a domestic servant, before the year 1681. They were claimed deemed slave, alas slaves by reason of the marriage of their ancestor, Irish Nell, though the with a negro slave, under the act of 1663, ch. 30. It was in act subjecting them proof, that she was married to the negro slave in the year 1681, to slavery be repealand in the same year, but afterwards, the act was repealed. ed immedicourt adjudged the petitioners free; and the defendant appealed ately after to this court, where, after argument, the judgment was reversed; riage. the court holding, that the issue born after the repealing law were slaves, the marriage taking place before the repeal; or, in other words, where a white woman intermarried with a slave, the issue are slaves, though the act subjecting such issue to slavery, was repealed, if the marriage took place before the repeal of the act, 2. BUTLER V. CRAIG. Oct. T. 1787. 2 Har. & M'Hen., Rep. 214. the mar issue of a be held in negro, ma Petition for freedom by Mary Butler, claiming her freedom as Before the a descendant of Irish Nell, a free white woman. After proof of free white the descent of the petitioner from Irish Nell, the defendant offered woman can to read the evidence taken in the former cause of Butler v. Boar- slavery under the act man, to prove that Irish Nell was married to a negro slave, during of 1663, for the existence of the act of 1663; and to prove that she was a slave, marrying a and all the issue and descendants from the said marriage have king such been constantly held and considered as slaves, and that the peti- and her issue slaves, tioner, one of the descendants, had always been held and considered a convicas a slave by the defendant. To which evidence the petitioner's mother counsel objected, alleging, that a record of the conviction of the must be said Irish Nell, for having intermarried with the slave, should be produced, and that without such conviction, neither the said Irish Nell, nor any of her descendants could legally be slaves. The court was of opinion, that without a conviction in a court of record of Irish Nell's having intermarried with a slave, she could not become a slave, nor could her issue become slaves by virtue woman proved. If from inspection it of such marriage; and that no presumption of conviction could arise from the petitioner and her ancestors having been held in slavery. The defendant appealed, and the court confirmed the judgment. 3. HOOK V. NANNY PAGEE, AND HER CHILDREN. June, T. 1811. 2 Munf. Rep. 379. Suit for freedom. The Jury found, among other things, that appears to Nanny Pagee was a white woman, in the following words: "We the jury the plaintiff of the jury also find, from inspection, that the said Nanny Pagee is a white is a white woman; We of the jury therefore find that the plaintiffs they ought are free persons, and not slaves." person, to find that he is a free man, unless it be It was contended that the word therefore, compels the court to inquire whether the premises were correct from which the jury proved that drew their conclusion. On the other hand, it was said, that the he descended in the verdict closed all other questions, by finding that the plaintiffs were maternal white persons. HUDGINS V. WRIGHTS, 1 Hen. & Munf. 134. line from a slave. Per Cur. Brooke, J. It is said, that the distinguishing characteristics of the different species of the human race are so visibly marked, that those species may be readily discriminated from each other by inspection, and that in the case of a person visibly appearing to be of a slave race, it is incumbent on him to make out his freedom; but in the case of a person visibly appearing to be of a free race, it is required of his adversary to show he is a slave Applying the doctrine to the case, I have no doubt the judgment of the district court was correct upon the verdict of the jury; putting out of the case every thing in the verdict, except the finding of the jury, that from inspection, the said plaintiff, Nanny Pagee, is a white woman; and this is quite sufficient, it being incumbent on the defendant to have proved, if he could, that the plaintiff was descended in the maternal line from a slave. Having not proved it, she and her children must be considered as free. (IV.) OF THE INCREASE OF SLAVES. (A.) TO WHOM THE INCREASE belongs. 1. ERWIN & OTHERS V. KILPATRICK AND OTHERS. June T. 1825. 3 Hawk's North Carolina Rep. 456.; GLASCOW v. FLOWERS, 1 Haywood's Rep. 233.; TIMMS v. POTTER, Martin's N. C. Rep. 22.; JONES V. JONES, C. & N. 310.; PRESTON V. MCGAUGHEY, C. C. U. S., Cook's Rep. 113. crease of slaves born life of a le tee, who is abso late own er. This was a petition filed in the court below, against the de- The infendants, as executors of the last will of William Erwin, deceased. The Petition stated, that the petitioners were the daughters of the during the testator, who having made a last will and testament, died, and gatee for life, belong the defendants proved the will, and assumed the execution thereof. to the ulteThat among other bequests, the will contained the following: "If rior legamy wife cease to be my widow by marriage, it is my will that the she shall have her bed, and her choice of one horse, and a fifth part of the household and kitchen furniture, but have no further claim to the use of my negroes. In this case, or at her death, it is my will that my son Joseph shall have my negro named Isaac, and my son John shall have Jack, and Lyd his wife, requiring of him some care of, and attention to, such of his sisters as may remain unmarried." The petition further stated, that after the death of the testator, and during the life of his widow, the slave Lyd had issue two children, Alfred and Verdy, after which the widow died; that the testator's son Joseph is dead without issue, and that John Erwin claims the negroes. The petition then insists, that the negroes Alfred and Verdy were undisposed of by the will, and prays that the defendants may be compelled to make distribution among the petitioners and John Erwin, the surving children of the testator. John Erwin, the son, being also made a defendant, answered, claining the negroes Alfred and Verdy, (the children of Lyd, born during the life estate of his mother,) because he was by the will entitled to the mother, Lyd, after the death of the widow. The petition was dismissed, and the petitioners appealed. A contrary rest; and it would be attended with the most mischievous consequences again to draw it into controversy. It has now become a fixed rule of property, that the increase of slaves born during the life of the legatee for life, belong to the ulterior legatee, who is the absolute owner. The judgment must be affirmed. 2. PRESTON V. M'GAUGHEY. June T. 1812. 1 Cook's Rep. 115. The court held, that it had been too long settled to be recalled, rule as to that if there be an estate for life in a negro woman, and pending applies to the estate she has children, they will go to the remainder-man. live stock. increase The issue Per Overton, J. From the cases it will appear, that if a negro woman is devised to one for life, with remainder to another, and during the life estate the woman have children, they belong not to him who has the life estate, but to the remainder-man. The increase must go to the person who has the general property, and not to the owner of the particular interest. But the rule does not apply "to live stock." Murphy v. Rigg, 1 Marsh. 532.; Miller v. M'Clelland, 7 Munroe's Rep. 232. 3. TIMM'S V. POTTER, 1 Haywood's Rep. 234.; CRAIG V. EUSTIS, 1 Cook's Rep. 381.; PRESTON V. M'GAUGHEY, Cook's Rep. 113. Held by the court, that the issue of a female slave follows the follows the condition condition of the mother, and belongs to the remainder-man, and of the mo- not to the tenant for life. ther. 4. Same rule in Ken tucky. NED ET. AL. v. BEAL. The testator devised that SPRING T. 1811. 2 Bibb, 298. his negro slave Jude should be free in 1804. After the death of the testator, and before the year 1804, the plaintiffs were born of Jude, who brought this suit for their freedom against Beal, who claimed them as slaves. The circuit court gave judgment for defendant. Per Cur. Boyle, Ch. J. The general rule is, that the children follow the condition of the mother, at the time of their birth, according to the maxim partus sequitur ventrem. Hence, it naturally follows, if Jude, the mother of the appellants, were at the time of their birth a slave, that they are also slaves. Judgment affirmed. 5. SCOTT V. DOBSON, October T. 1749. 1 Har. & M'Henry, Contra. slaves is the issue 160.; SOMMERVILLE V. JOHNSON, 1 Har. & M'Henry, 348.; HAMILTON V. CRAIG, 6 Har. & Johns. Rep. 18. Replevin for Lewis and Sampson, two negro boys, and Kate A legatee and Phoebe. The jury found, that Benjamin Parrot, by his late for life of will and testament, devised as follows: "I leave unto my wife entitled to four negroes during her natural life; that is to say, Kate, Alice, born duMoreah, and Rose, and after her death to be divided between my life estate. ring the seven children, Benjamin, Mary, Hannah, Eliza, Jane, Rebecca and William Parrot." The defendant, Hannah, is one of the children mentioned in the will, and took and detained the negroes after the death of the testator's wife, and the plaintiff intermarried with the widow; that the negroes mentioned in the declaration. were born after the death of the testator, of the bodies of the slaves mentioned in the will, and while they were in the possession of the widow of the testator and her husband. The provincial court gave judgment for the defendant, and the plaintiff appealed to this court where the judgment was reversed. And, see Sommerville v. Johnson, Feb. T. 1770, 1 Har. & M'Henry, 348., and Mr. Dulany's opinion appended to the case. In speaking of the above case, Mr. Dulany says, that the bar of Maryland have considered the case as settling the law, that purchases have been made, and much property is held under the decision. And that the two principal reasons which governed the court were, 1st. That the issue ought to go to the person to whom the use was limited; otherwise, having no interest worth regarding, he might not take care of the issue, and that it would only be a reasonable satisfaction for the expenses of maintenance. 2d. That when the use is given, a bounty at all events is intended; but instead of a benefit, if th: issue should go over, there might be a loss. And in Bohen v. Headly, 7 Har. & Johns. Rep. 257., Archer, J., held, that the issue of slaves born. during the existence of a tenancy for life belong to the tenant. * And see Mr. Dulany's opinion, 1 Har. & M Henry, 557., where he held, that where A. was possessed of a negro woman slave, who in the life time of A. had issue, which issue also had issue after the death of A., can the representatives of A. claim a share in the issue of the children born after the death of A.? I think the representatives of A. might claim the issue. |