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4. BEATTY v. JUDY et al. Spring T. 1833. 1 Dana's Rep. 101.;

PLUMPTON y. Cook, 2 Marshall's Rep. 450. ; CHINN et

ux. v. RESPASS, 1 Monroe's Rep. 28. And in Per Cur. Robertson, Ch J. It has been frequently said by this contracts and wills court, that the phrase, “personal estate,” in wills and contracts, the term " personal without any other restrictive expression or provision, should be estate" includes

construed as embracing slaves. * them.

5. Sneed v. EWING AND WIFE. April T. 1831. 5 J. J. Marsh.

Rep. 481. And are considered

Held by the court, Robertson, Ch. J., that slaves are, in every respect, except as to descents and last wills, personalty. They go to the administrator, and may be assets in his hands for payment of debts. And the heir cannot, without the assent of the administrator, maintain a suit for a slave of the intestate. They must be distributed according to the lex domicilii. See Plumpton v. Cook, 2 Marsh. Rep. 451.; Hawkins v. Craig, 6 Monroe's Rep. 257.

assets.

are

assets

6. JUSTICES OF Mason County v. Lee, 1 Monroe's Rep. 254. And they

Held by the court, that, prior to the act of 1800, slaves though in the hands

of specially devised passed immediately to the executor, and were asexecutors, sets in his hands ; but since the act they pass as lands absolutely &c.

to the devisee.

Held, also by the court, that slaves were assets in the hands of the administrator, and he represents them as completely with regard to controversies concerning their title, as he does any other chattel.

* Whether slaves are personal or real estate depends upon the local enactments in the different states. In South Carolina it is declared that slaves shall be taken, reputed, and adjudged in law to be chattels personal; 2 Brev. Dig. 220. but in Louisiana, they are real estate ; 1 Martin's Dig. 612. in Kentucky as to the law of descents the considered as real estate, but they are challels for the payment of debts; 2 Litt. & Swi. 1115. and the cases in the text.

are

for defect

7. CONCLUDE v. WILLIAMSON, ADM'R OF CONCLUDE, 1 J. J.

Marshall's Rep. 16. The legislature of Kentucky, in 1825, Sessions Acts, p. 195., pass- And they ed an act declaring the plaintiff in error, Zacheriah Conclude, cheat to the should be a freeman, and should inherit the estate of Isaac Con- state as in clude, his father, who, being a free man of color, had died without real estate heirs. Zacheriah instituted this suit against Williamson, averring of heirs. that he had in his possession $200 assets, and praying for a decree for that amount. The administrator admitted in his answer, that he received of the estate $ 400, but that he had paid it away in the purchase of a daughter of the intestate in pursuance of his wish often expressed. The circuit court dismissed the bill, and complainant appealed to this court. Per Cur. Robertson, Ch. J.

Robertson, Ch. J. A slave is not subject to escheat, but vests in the administrators or executors, as assets for the benefit of creditors. And the administrator, having assented to the act of emancipation, cannot urge any personal right to the party ernancipated. The personal property of one dying without an heir is derelict.

(VI.) OF TITLE TO SLAVES.*

(A.) BY DEED.

1 DAVIS v. MITCHELL. Dec. T. 1833. 5 Yerger's Tennessee

Rep. 281. This suit was brought to recover a slave. The plaintiff proved A deed rethat the slave had been given to him whilst an infant; that at the not necestime of making the gift, possession of the slave was given to his pass

to

title to a slave

when pos

Slaves may be sold and transferred from one to another without any statutory re- session fol

lows and striction or limitation, as to the separation of parents and children, &c., except in the

accompastate of Louisiana. Stroud's Sketch of Slavery in the different States, page 50. It nies the is stated in Stephens on West Indian Slavery, that in the Spanish and Portuguese gift or sale. settlements, and in the French colonies by the Code Noir, that the husband cannot be sold without the wife, nor can the parents without the children. See Stephens' Slavery, p. 69. Code Noir, art. 47. Slaves may be sold by creditors for the debts of their owners in all the states but Louisisana, where they cannot be separated from the land. 1 Martin's Dig. 612. Act of July 7, 1806. The law was, however, the same

guardian, and that he had remained with his guardian for three years and more, before he came to the possession of the defendant. The plaintiff did not produce any deed or bill of sale which had been registered; none having been made. The court, among other things, charged the jury, that the act of 1784 was not repealed by the act of 1801, so that there was still a necessity for a bill of sale. The jury found a verdict for the defendant; and a motion for a new trial having been made and overruled, the plaintiff prosecutes this writ of error to this court.

Per Cur. Green, J. In this case the judge below, among other things, told the jury that “ the act of 1784 is not repealed by the act of 1801, so that there is still a necessity for a bill of sale." Although the act of 1784 is not repealed, nevertheless, the succeeding sentence of the charge is too broad. A deed registered is only necessary where possession does not accompany the gift or sale. It has been constantly held, that where possession is delivered at the time a gift or sale of a slave is made, it is good as between the parties, and vests a title without a deed. 2 Hay. Rep. 62. 67. 87. ; Cains & Wife v. Marley, 1 Yerg. Rep. 582. But from this charge it would seem the judge considered a bill of sale as necessary in all cases, in order to communicate title. In this he erred. Judgment reversed.

2. ATKINSON v. CLARKE. Dec. T. 1831. 3 Devereaux's Rep. 171.

Supreme Court of North Carolina.

A deed of

This was an action of trespass, for taking from the possession gift for slaves, of the plaintiff two negroes. The defendant pleaded not guilty, which is

and put in a special justification under final process to himself as notattested by a sub- sheriff, against the property of one Tunstal. At the trial the witness, is plaintiff produced a deed of gist, dated the 18th of April, 1822, void,

whereby Tunstal, in consideration of the love and affection which he bore to his daughter, the wife of the plaintiff, conveyed to the latter the slaves in dispute. This deed was signed and sealed by

as that which prevails in the United States, and in the British West Indies. Edwards' History of the West Indies, vol. 2. book 4. But in the Spanish, Portuguese, and French possessions it is different. Plantation slaves are real estate, and cannot be seized and sold separate from the land they cultivate. Stephens on Slavery, p. 63, Annales de la Martinique, tome 1. p. 285. Nor can the husband, wife, and children be separated, Ibid.

Tunstal, but was not attested by a witness, and was registered upon proof of the donor's hand-writing; and the plaintiff proved as possession of the slaves conveyed by it up to the year 1827. The Judge below instructed the jury, that neither the deed from Tunstal to the plaintiff, nor the possession under it, gave the plaintiff title ; and the plaintiff appealed.

Per Cur. Ruffin, J. The superior court does not seem to have erred upon any of the points made in that Court.

The deed from Tunstal to the plaintiff is void. Palmer v. Faucett, 2 Deveraux's Rep. 240.

3.

can

donee the

Smith et ux. V. YEATE3. Dec. T. 1827. 1 Devereaux's North

Carolina Rep. 302. Detinue for a negro. On the trial the plaintiff offered in evi- The act of

1806, redence the following paper, which was procured and registered. quiring

gifts of “Received of Mariana Lewis ten dollars in cash, it being for a slaves to be

authentica certain negro boy, Tony. May 18, 1822.

ted by wri“ James JOHNSON.” ting,

not be evaThe wife of Johnson proved that Mariana Lewis, who after-ded by a wards intermarried with the plaintiff, resided with her at the house sale ; thereof her husband; that before the date of the instrument she had the donor heard Johnson express an intention of giving Tony to Mariana. gave the That on the 18th day of May, 1822, Johnson repeated this decla- purchase ration, but observed, that he could not give the negro, unless some and then money was paid him by Mariana, and said if she would give him delivered ten dollars, Tony should be hers. Mariana replied that she had the slave, not the money ; he told her that she could borrow it of his wife. back the The money was accordingly produced by the witness, and handed this was to Mariana, who gave it to Johnson, upon which he wrote the instrument, and delivered it, the boy being present. The defend- void with

a . ant claimed title under the will of Johnson, of a subsequent date. His honor instructed the jury, that to constitute a valid bill of sale, the instrument must contain some words showing an intention of passing the property. That if the writing was not a good bill of sale, they were to inquire from the evidence whether there had been a sale, and an actual delivery. If there had been a sale accompanied with a delivery, the property in the slave passed, notwithstanding the act of 1821, although there was no bill of sale. And that lending, or even giving the money, by Johnson's wife, would

held to be a

gift, and

not invalidate an actual sale, accompanied by a delivery. The counsel for the defendant moved the judge to instruct the jury, that if they thought the ten dollars was not in fact lent, or given, by Johnson to Mariana, and that he did not mean to give her credit for the amount, but furnished them to her, and received them hack, mere colorably, and to make a gist under the pretence and form of a sale, that the property did not pass. The judge declined giving such instructions, and the jury returned a verdict for plaintiff, whereupon the defendant appealed.

Per Cur. Hall, J. With respect to the act of 1821, concerning the sale of slaves, accompanied with a delivery, the inclination of my mind is with the judge below. I also agree with him that the receipt is inoperative, as a bill of sale, if for no other reason, because it has no subscribing witness to it. Rev. ch. 225. For the same reason it cannot be supported as a deed of gift. Rev. ch. 701. The question then is, was there a sale and delivery of the negro in dispute.

The receipt is evidence that ten dollars was paid, but the circumstances attending the payınent are before us. From them it appears that there was, in fact, no payment made by the plaintiff.

The money was in reality paid by Johnson to himself, so that, although the jury found a delivery, the payment did not amount to such consideration as to make it a sale of the slave. If, then, there was a delivery, but upon no consideration, it was a gift; but that, by the act of 1806, Rev. ch. 701., is void, because not authenticated by deed. A sale, completed by delivery, requires no such evidence. Disguise this case as you will, it is only a gift. If it is considered as a sale, the act of 1806 may be evaded by the consideration of a pepper corn. Judgment reversed.

4. PALMER v. FAUCETT. Dec. T. 1829. 2 Devereaux's North

Carolina Rep. 240. The 7th Detinue for a slave. After the plaintiff had made out his case, section of the act of the defendant proved, that upon his marriage with a daughter of 1784,(Rev. the plaintiff, in the year 1821, the slave in question had been put ch. 225,) requiring, into his possession by the plaintiff ; that this possession continued, sales and gifts of until the year 1825, when the plaintiff received the slave again, slaves to be and hired him for a part of the years 1825 and 1826. After which attested by the slave was again permitted to go into the possession of the de& witness, and regis fendant. There was proof that the plaintiff sent to the defendant

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