
    John, James, &c., (of color,) vs Walker, Executor of Bates.
    Error to the Madison Circuit.
    Chancery.
    Case■ 130.
    
      J. 4* W. L. Iiarlan and Runyan for plaintiffs; Turner for defendants.
    
      Emancipation. Parties.
    
    A suit lor1 freedom cannot- be sustained against any person- but one rvho, at'the institution thereof, has the-custody, or who claims the-ownership of the-person claiming-the right to freedom..
    September 27.
   Judge Siufsoh

delivered the opinion of the Court.

This suit in chancery was brought by the plaintiffs in error, asserting their right to freedom under the last will and testament of John Bates, deceased, against his executors.

It appears that although the defendant, Walker, either as executor or devisee under the will, had the possession of the complainants and retained them in slavery after the death of Bates, yet they had been sold by him, placed in the possession of the purchaser, and removed out of this State, about two years previous to the institution of the present suit; and that none of the defendants in the suit, had the possession of the complainants, or any of them, or any right to them, since that period.

Can this suit be maintained under these circumstances? We are clearly of opinion it cannot. To effect the object of the suit, it should be brought against the person claiming ownership, or having the complainants in custody at the time of its institution. In a suit against a previous owner, the Court could render no decree affecting the rights of the present proprietor, or releasing the complainants from the bondage in which they are held. Such a suit, being wholly ineffectual in its results, not enabling the Court to grant the relief sought, nor to adjudicate upon the rights of the complainants to freedom, cannot be maintained.

Wherefore, the decree of the Court dismissing the complainants’ bill without prejudice, is affirmed.  