Sam v. Lewis Childs, Gabriel Childs, & Hiram Emerson. Circuit Court Report


Negro Samuel v. Childs et al.

Two witnesses are necessary to a deed of manumission under the Maryland Act of 1796, c. 67, § 29.

If a female slave, manumitted by last will of the owner, to be free at the age of twenty-five years, has a child born after the death of the testator and before she arrives at the age of twenty-five, such child is a slave.

The petitioner was included in a deed of manumission made in Maryland, February 17th, 1797, which was witnessed by only one witness. The Maryland Act of December 31, 1796, c. 67,   § 29, required two witnesses. The master afterwards carried them to Virginia, where he died, having by his will left them free at the age of twenty-five. The petitioner's mother, one of those slaves, was living in Virginia at the death of the testator; after whose death, and before the petitioner's mother had attained the age of twenty-five, that is, before she was actually free, the petitioner was born, in Virginia.

Mr. Key, for the defendant, contended that the petitioner, under those circumstances, was born a slave, and cited the case of Maria and others v. Surbaugh, 2 Rand. Rep. 228; in which the Court of Appeals of Virginia unanimously decided, that where a testator bequeathes a female slave on condition that she shall be free at a certain age, and before that period arrives she has issue, such issue are slaves; and

This Court (Thruston, J., contrà,) decided accordingly.

Judgment for the defendants.