
    Hartsell vs. George.
    1. A petition by the owner of a slave for his emancipation under the act of 1801, ch. 27, granted and signed by two-thirds of a competent court, to wit, a majority of the justices of the peace of the county, or nine of them, is good and valid to effect the emancipation of such slave, though it be not signed by the chairman in the capacity of chairman.
    2. The validity of the order of liberation cannot be incidentally and collaterally impeached in a suit broughtby such liberated person for his freedom.
    3. The master had at common law complete power over the question of emancipation, and such right still exists except so far as it is prohibited by statute:
    4. The order of a competent court upon the petition of a master, that his slave should be liberated upon the happening of the death of himself or his wife, or the survivor of them, was an act of emancipation in prcescnli, to take effect in future. The services of the person liberated were due to the master,, but the character of slave ceased, and a child, born after the act of emancipation, and before the happening of such contingency, would be free.
    •George, a free boy of color, under twenty-one years of age, by his next friend, Harris, sued Hartsell in the circuit court of Washington, on the 10th day of September, 1836, by writ of trespass vi et armis.
    
    Hartsell pleaded that plaintiff was his slave, upon which issue was joined. This issue was submitted to a jury at the October term, 1839, R. M. Anderson, judge, 'presiding.
    
      The plaintiff introduced a document as evidence, which was as follows:
    “Be it remembered, that at a court of pleas and quarter sessions, held for Washington county, Tennessee, in April term, 1821, the following justices being present, J. Collum, J. Stephenson, J. Patton, J. Link, J. Payne, W. Chester, J. Shain, W. Gremsby, W. Mitchell, G. D. Vance, W. Bayless, David Wilson, Jacob Ellis, A. Glascock, they being a majority of the justices of the county, the following record ivas made, to wit: “State of Tennessee, Washington County,
    “To the justices of the court of pleas and quarter sessions of Washington county, now sitting in open court:
    “The petition of John Bayless, Sen., respectfully represents, that your petitioner is now the owner and possessor of a female slave named Jenny, about the age of 25, which slave, I, beingfully impressed with the great impropriety of slavery, and believing liberty to be the unalienable right of all human beings, desire to manumit at the time hereinafter mentioned, for the following reasons:
    1st. That b^ the time hereinafter mentioned, she will by her industry have fcompensated your petitioner forthe money expended in the purchase of her.
    2d. That by reason of her good qualities, she would be a fit subject for civil society, and will support herself.
    For these and other good considerations your petitioner prays that an order be made, liberating said slave at or upon the happening of the death of petitioner or wife, or the survivor of them; and at that time to be and remain free, and that a record be made of the liberation of said slave, to take effect at the said event, to wit, at the death of the survivor of himself or wife Ann, on such security being given for the indemnity of Washington county, as your worships shall direct.
    
      JOHN BAYLESS.”
    The above petition is granted in manner and form as by act of assembly directed.
    J ohn Patton, W. Bayless, John Shain, John Stephenson, John Link, David Link, D. Wilson, D. Vance, W. Mitchell, Jacob Ellis.
    
      On the 16th day of April, 1821, Bayless gave boriel in the penalty of $600 to the justices of Washington county, which was “to be void on condition, that Jenny, a woman of color this day emancipated at the death of said Bayless and wife, shall not become chargeable to Washington county.”
    At a subsequent period Bayless died, and it appeared that Jenny passed into the hands of the widow of deceased. During the time she was held by the widow, she bore a child the present plaintiff, George. George was taken in possession by a son of the deceased and sold for a valuable consideration to Hartsell, the defendant, as a slave for life. The widow of the deceased was alive at the commencement of the suit.
    Testimony was offered on the part of Hartsell, for the purpose of showing that Bayless was insane at the time of the record of emancipation was made by the justices of the court.
    The presiding judge charged the jury, that the record of emancipation was substantially in accordance with the act of assembly; that no judgment of the court was necessary upon the application; that the endorsement signed by the justices was sufficient, and that it was not necessary for the presiding justice to endorse on the back of the petition as the act directs to constitute it a valid order of liberation; that this record contained a grant of a present right to-freedom, to take effect in future, and that the master retained a right to her services, and that the county court had the power to make such an order of liberation.
    The court charged the jury, that the child of the negro Jenny, after the order, was free at its birth, and had a right to maintain an action for its freedom before the death of Ann Bay less.
    The court further charged the jury, that they had no right to enquire into the sanity or insanity of the deceased at the time the order of liberation wa's made. That the order in the county court was binding and conclusive, and could not be impeached unless upon appeal, certiorari, or writ of error.
    The jury rendered a verdict in favor of the plaintiff The defendant appealed in error.
    
      Lucky, for the plaintiff in error.
    
      
      J. A. McKinney, for the defendant in error.
   Reese, J.

delivered the opinion of the court.

This is an action of trespass brought by the defendant in error to assert and recover his freedom. John Bayless of Washington county, the owner of a slave Jenny, in his life time presented his petition to the county court of that county, at its April session, in the year 1821, praying upon views and for reasons therein set forth that said slave should, by order of said court, be liberated upon the happening of the death of himself or his wife, or the survivor of them, then to be and remain free; and that the court would then direct a record of liberation to be made, to take effect upon said event, and security to be given for the indemnity of Washington county, as the court should direct. The justices then present, being, as the record states, a majority of all the justices of said county, endorsed upon said petition, that it was granted in manner and form as the act of assembly directed, and all of them signed said endorsement, although none of them signed it in the character of chairman. At the same time the said court took from said petitioner a bond with security, which recited, that it was to be void on condition, that Jenny, a woman of color that day emancipated at the death of petitioner and his wife, should not become chargeable to the county of Washington.

The defendant in error is the son of said Jenny, born after these proceedings took place.

1st. Does the omission of any of the justices to sign the report endorsed on the petition, in the character of chairman, invalidate the act of emancipation? We are satisfied that it does not. It is to nine or a majority of the county court, two-thirds of that number concurring, that the power is delegated by the legislature to give or withhold the assent of the public in such a case. It is not delegated to the chairman of that body; his endorsement is intended to be an easy and convenient mode of evidencing that assent by his signature as their organ. If then the whole body present, by their own endorsement and signatures, manifest their own assent, is not the act as solemn and the evidence of assent more satisfactory and conclusive?

2d. What is the legal effect of the proceedings concurrent between the petitioner and the county court? Most clearly it was an act of emancipation in prcesenti to be enjoyed however on the part of the slave in future. This was the purpose of both parties, of the owner and of the public. No future petition was intended to be presented by the owner; no future assent to be given by the public; no future bondt'o be entered into for the indemnity of the county. The act was consummate; the concession of freedom on the part of the owner, and assent on the part of the public were final and complete. The services of her who had been a slave, continued indeed to be due to the master until his death, but the character of slave ceased. And whatever contrariety of opinion may have existed in different States as-to children born after a devise of freedom to the mother, and before the assent of the public, none it is supposed could exist in a case like the present, where the owner and the public had concurrently joined in the act of emancipation.

The only question, therefore, remaining is, whether the county court had power to give an assent on the part of the public, which would suspend the actual enjoyment of the freedom conceded till a future period. And why has it not this power?

The master at common law had complete control over the question of emancipation. His power exists; except in so far as it may have been prohibited, and the prohibition is not found in the statute. Besides, if it were otherwise, it would probably follow, not that the woman in this case would have continued a slave, but that the master, contrary to his intentions, would by the proceedings have lost his right to her future services, unless voluntarily bestowed. In any view, we think that the defendant in error was born free.

The other ground of objection to the charge of the court, that the proceedings of the county court could not be incidentally and collaterally impeached on the score of the alledged insanity of the petitioner, has not been much pressed.

The charge of the court, we think, was correctin that respect. Upon the whole we affirm the judgment.  