
    Blackmore and Hadley vs. Negro Phill.
    Where a general demurrer was filed to a plea, and overruled by the court: Held, that the court under the statutes of amendments, might allow the plaintiff to amend by withdrawing his demurrer and filing a replication to reach the merits of the case.
    A special demurrer being filed by the defendant to the plaintiff’s replication, and the record not showing what disposition .was made of the demurrer, but showing an issue taken to the country, and that issue tried: field, that the demurrer will be considered as waived by the parties.
    Where the owner of slaves who resided in Tennessee, by the laws of which State he could not emancipate slaves without the assent of the legislature or the county court, removed them to the State of Illinois, where slavery did not exist, with the intent to emancipate them, and make them citizens of the latter State, and in pursuance of such intent, executed a deed of manumission to them, and they immediately formed the design to return to Tennessee, and did so return: Held, that the emancipation was good and effectual, and entitled them to their freedom in Tennessee: Held, also, that if the design, in going to Illinois, was to '..emancipate said slaves and evade the laws of Tennessee, and that such slaves should immediately return to Tennessee, the emancipation would be good, and cntit!e_the negroes to their freedom in Tennessee; and were the law otherwise, the question of intention is a fact to be left to the \jury.
    A deed of emancipation executed in a State where, by the constitution, involuntary slavery does not exist, is prima facie good, and entitles the negroes to freedom, and the proof of its invalidity must come from those who dispute the act, and attempt to hold against it.
    This was an action brought by Phill, a man of color, against the plain tiffs in error, in the circuit court of Sumner county, for trespass and fasle imprisonment, to try his right to freedom. The defendants below pleaded, that Pliill, who was plaintiff below, “ought not to have and maintain bis action against them; because, they say, that sáid Phill, before and at the time of the commencement of this suit, was and still is a slave, and this they are ready to verify, wherefore they pray,” &c. To this pica, the plaintiff demurred. Upon argument of the'demurrer, it was overruled by the court, and upon application of the plaintiff, the court permitted him to withdraw his demurrer and file a replication.
    The plaintiff filed a replication, replying, “that on the - day of-, 1829, at the county of Sumner, in the State of Tennessee, Joshua Hadley, whose slave he then was, by his deed, in writing, commonly called abill of sale, transferred all his right, title, claim and interest, in and to the plaintiff to one George S. Latimore, and then and there delivered the plaintiff to said George S., who thereafter, to wit: on the-day of-, in the year aforesaid, conveyed the plaintiff to the State of Illinois, and on the-day of-, 1829, the said George S., by his deed of manumission, before the institution of this suit, in the county' of Gallatin, in said State of Illinois, before the proper tribunal in said State, and according to the requisitions of the statutes of said State, in such case made and provided, then and there manumitted and freed the said plaintiff from the bonds of slavery; without this, that he, the said plaintiff', is a slave in manner and form, as the defendants in pleading have alleged, which he prays may be inquired of by the country.” Upon the filing of this replication, the defendants moved the court that the same be stricken out, which motion the court overruled, and thereupon the defendants filed their demurrer as follows: ‘^And the defendants, as to the replication of the plaintiff in this behalf, say, actio non; because the said replication and the matter thereof in manner and form pleaded, are not sufficient in law for the plaintiff to have and maintain his aforesaid action, and this the defendants are ready to verify. And for cause of demurrer, defendants set down and show to the court here the following: 1. The replication amounts to a denial of the plea, and is matter of evidence and not of special replication. 2. The deeds referred to therein, should have been set out and exhibited to the court. 3. The replication is in other respects defective, informal, and wants substance.” The record does not show that any joinder was made in said demurrer, nor does it show that there was any action upon the same by the court, nor what disposition was made thereof. The record shows that the defendants entered a similiter to the plaintiff’s replication; and an issue being formed to the country, was tried by a jury and found by them for the plaintiff, Phill. The bill of exceptions shows, that on the trial of the cause before the jury, the plaintiff introduced and read to the jury, a bill of sale from Joshua Hadley, senior, to George S. Latimore, for said Phill, and other slaves, of date the 12th of November, 1828. Which said bill of sale was properly acknowledged, certified and registered. The plaintiff then offered to read a deed of manumission from said George S. Latimore to said Phill and the other negroes included in said bill of sale, from Hadley to Latimore. To the reading of which, the defendants, by their counsel, objected, because it was not certified according to the provisions of the act of congress, and the court sustained the objection. The plaintiff then introduced George S. Latimore, and proved by him, that he had executed the deed of manumission, in Equality, in Illinois, on the day it bears date; that he never saw Willis Hargrave, the witness to the deed, before or since the time he became a subscribing witness to the same; that he then understood he lived in the State of Illinois, but where, he did not remember; that he had never heard of said witness in the State of Tennessee, and did not believe he lived in the State, nor did he know where he resided. He further stated, that he gave such a bond of indemnity as Col. White, the clerk of the court, in whose office the deed was executed, informed him the laws of Illinois required. The plaintiff then offered to read the deed to the jury, to which, the defendant objected; but the objection being overruled, the deed was read to the jury. The deed contains a description of the negroes, and recites, “that in order to fulfill the desire of his friend, Capt. Joshua Hadley, and in accordance with Jus own will, he, the said Latimore, had emancipated, v-l i , , „ , ••ill," liberaed and set lree, the negroes m said deed mentioned,which included Phill, the plaintiff. Said deed also recites on its face, “ that said Latimore had given bond in the penalt3r required by the statutes of Illinois, that said negroes should not become a county charge.” The witness, Latimore, being re-examined, stated, that he removed the plaintfF, with the other ne-groes in the deed embraced, from Tennessee to Illinois, and remained with them some three or lour days in that State, where he executed the said deed of manumission. That said 'plaintiff, and the other negroes in the deed mentioned, were taken by him to Illinois with a view of their becoming citizens of said State, and remaining there; but1 that after the execution of the deed-of manumission, they expressed some anxiety to return to Tennessee and wait upon their old master, Capt. Hadley; and having asked Col. White, the clerk of the court, whether they could return without endangering their liberty, and he having informed them that they were free and could go where they pleased, they immediately returned, the plaintiff among the rest, with the witness, to Sumner county, in the State of Tennessee, and remained there until the death of Joshua Hadley; when the whole of them, including the plaintiff, were taken into possession by defendants, and held by them until the commencement of this suit. He also stated, that said Joshua Had-ley, after the return of said negroes, hired Stephen, and having fallen out with him, then hired the plaintiff Phill. The testimony in the case, showed that the plaintiff for many years belonged to Joshua Hadley; that said Had-ley, at the time he made said bill of sale to Latimore, was upwards of seventy years of age, was dieased and very infirm, but that he was of sound mind, though very changable in his affections and the objects of his bounty. That about 1825, there was a serious difference between the said Hadley and his family; that he expressed great hostility towards bis family; that he was endeavoring to dispose of Ins property, by guts and otherwise, to preVent its going to his children, saying, that he had made them rich. That previous to his death, he became reconciled to his family. That before he differed with and became hostile to his family, he had expressed his opposition to and abhorrence of slavery, and that after the difference with his family, he frequently expressed a strong desire to have said Phill and the other negroes embraced in the bill of sale, liberated and freed. That on one occasion he had applied to the legislature of Tennessee, and on another, to the county court of Sumner, to emancipate said negro Phill and the others, but had failed in both applications. That said Latimore received said bill of sale expressly upon the condition, that he would take them to the State of Illinois and emancipate them, and for such service he was to receive from said Pladley a tract of land in the Western District of Tennessee. The plaintiff did not exhibit or read any of the statutes of the State of Illinois upon the subject of emancipating slaves, but read the constitution of said State, from which it appeared that involuntary slavery did not exist in said State of Illinois. -There was no other evidence in the cause, and thereupon the court charged the jury, “that the plaintiff was not bound to show what the statutes of Illinois were upon the subject of emancipation; and by common law, slaves might be manumitted by deed alone. If tbe plaintiff and Latimore went to Illinois to emancipate said plaintiff and the other negroes, and their Original intention was not to return to Tennessee, and with that intention the deed was executed, and immediately after-wards said plaintiff and the other negroes came to the conclusion to return to Tennessee, it would not be an evasion of the laws of the Slate, and the emancipation would be effectual.” The jury found a verdict for the plaintiff; and the defendants having moved for a new trial, and the same being overruled, the defendants excepted to the opinion of the court, and appealed in the r c . c J nature ol a writ of error to this court.
    
      T. Washington, for plaintiffs in error.
    1. The overruling of the demurrer to the plea, that the negroes were slaves, was decisive of the cause; and after that, the court had no authority to give to the plaintiff below, leave to reply. The plea went to the foundation of the action; it was admitted to be true, in point of fact, by the demurrer; and the judgment in such case was final, not interlocutory.
    2. The excursion to Illinois, and the whole farce enacted there, was in fraud of the legal policy of Tennessee, and of Illinois, and-rendered the attempt at emancipation void. Acts of Territory of Illinois, p. 474, Sec. I. Acts of the State of Illinois, p. 354, Sec. 3, 7. Revised code of Illinois, p. 109, Sec. 1, 2, 3. 5 Johnson, 327, 239: 3 Term, 454: 4 Term, 466: 1 Johnson, 425: 2 Johnson, 235: 4 Johnson, 285: Antigua case of slave Grace.
    
      J. S. Yerger, for the defendant in error.
    1. There was no error in the opinion of the court, allowing the demurrer to the plea to be withdrawn, and a replication to be filed to the plea to reach the merits of the case. Under our statutes of amendment, and the practice upon them, the discretion given to the courts to allow amendments to be made in pleading, was properly exercised in this case. These statutes contemplate a trial of all cases upon their merits, disregarding the technicalities of pleading, and allow amendments to be made at any time, so that their merits may be reached.
    2. The objection, that there is error in the record, because it does not appear what disposition was made of the special demurrer to the plaintiff’s replication, has nothing in it. The defendants subsequently filed an issue to the replication, upon which a trial was had. In such caso, the record being silent upon the subject, it may fairly be presumed that the demurrer was withdrawn by the consent of the parties; or if that cannot be presumed, the taking issue upon the replication, and proceeding to trial, will be considered a waiver by the parties of such demurrer.
    3. The objection, that the deed of manumission was permitted by the court to be read to the jury without sufficient proof, is not sustainable. The proof by the grantor Latimore, that he executed it in Illinois at the time it hears date, and that Hargrave, the witness, lived without the jurisdiction of the court, was sufficient evidence of its execution to authorize it to be read on the trial. 4 Bibb Rep. 201: 1 Stark Ev. 261, 262, 263: 2 Strange, 290: 4 Wash. C. C. R. 215, 538. The title to the plaintiff was shown to have been vested in Latimore by Hadley, and his acknowledgement under oath, that he executed the deed at the time it bears date, was the best' evidence that he had divested himself of title that could have been adduced by the plaintiff; and was certainly the highest evidence of the execution of the instrument. He was speaking against his interest, and consequently must be supposed to have spoken truly.
    It is only necessary to prove the handwriting of a witness to a deed, or to prove the execution of the deed by the subscribing witness, when the deed is to be fixed upon the supposed grantor, Who denies its execution. Proof of the handwriting of the grantor is not allowed •where.there is a subscribing witness to the deed, because it is not the best evidence; but the acknowledgement of the grantor would be good evidence, though there was a subscribing witness, against a trespasser. The object of the proof is to show the grant of the right in this slave from Latimore to himself. 'What better or higher evi'dence of that fact could be had, than the positive swearing of the grantor himself. Proof of the handwriting of the grantor to the deed, and of the subscrib-iiig witness, with proof of such witness’ absence beyond . ..... V, ,. u r • the jurisdiction ot the court, would only raise a presumption of the execution of the deed, the swearing of the grantor proved the fact positively, and was consequently a higher grade of evidence.
    It was not necessary that this deed of manumission should have been recorded; it was good between the parties, and as to trespassers from its delivery without registration. 2 John R. 45: Grady vs. Sharon, 6 Yerger Rep. 320.
    4. There is no error in the charge of the court, where it is said, “that the constitution of Illinois being read, showing that involuntary slavery does not exist in that State, the proof of á law modifying the provisions of the constitution must come from the defendants.” This is certainly true. The constitution of that State (article 6, section 1,) had laid down the broadest possible rule upon the subject; and the plaintiff having produced a deed of emancipation executed in that State, had prima facie shown himself entitled to freedom; and any thing tending to invalidate such deed, must of necessity have come from the party claiming to hold him as a slave.
    5. It is next objected, and on this objection the defendants mainly rely, that the execution of the deed from Hadley to Lalimore, the removal of the negroes to Illinois, and the execution of the deed of manumission by Latimore to the plaintiff, Phill, and others, was made with a view to evade the laws of Tennessee, with an intent that they should return to Tennessee, and is agajjftgrthe, legal policy of Tennessee, and therefore
    It is true, that by the laws of Tennessee, not be liberated without the assent of the legislare-» the county court of the county where the ownerwVsic . tte It is also true, that the bill of sale from Hadley^o hsáíi-more, was made upon the consideration, that T would take the negroes to Illinois and emancipate them; and it may also be admitted that the design of the parties was to evade the laws of Tennessee, and that r , , , . m v said negroes should return to Tennessee to live, yet it does not follow that the emancipation in Illinois was ineffectual, and a return of the negroes to Tennessee placed them in the condition of slaves.
    The contract between Hadley and Latimore, was that Hadley would convey the slaves, and the agreement of Latimore was, that if Hadley would convey, he would remove the slaves to the State of Illinois and liberate them, such liberation being allowable in that Slate. This condition of the contract, although the contract itself conveys the negroes absolutely to Latimore, made him trustee for the negroes, and raised an equitable right to freedom in their behalf, which a court of equity would have compelled Latimore specifically to have executed, in case of a refusal, the contract being made with a reference to its performance in a State where freedom is as much the boon of the black man as the white. Marshall vs. M’Cutchen, S Peter Rep. 220: Hope vs. Johnston, 2 Yerg. Rep. 231: 1 Bibb’s Rep. 422: Fisher’s negroes vs. Fisher, 6 Yerg. Rep. 119.
    Suppose, though, that the contract between Hadley and Latimore being made to evade the laws of Tennessee, and with a view to the return of the negroes to this State, a court of equity would refuse to enforce its specific execution, still there is a much stronger ground to sustain this manumission.
    Theje was no law at that time prohibiting the return of slaves liberated in a free State, to this Slate, and consequently, if the slaves were removed to such free State and liberated with all the regular forms required by the laws of that Sta'te, they would be invested with all the rights of ownership of themselves, and the contract between them and their owner being fully executed, and they invested with all the rights of freemen, a change of residence would not and could not dissolve it.
    This contract was made and fully executed between Latimore and these slaves in the State of Illinios, where * such a contract was allowable; he made them a grant oí their freedom; there they were competent to receive it; there was no restraint upon them or him, and by the oxe-cution of the deed, a full and perfect right to freedom vested in them, and a divestiture of all right to them from Latimore took place, and if they were entitled to freedom in Illinois, they may assert it any where. 2 Marshall’s Ky. Rep. 467. In the country where the emancipation took place, such contracts were lawful. The lex loci contractus must govern in the construction of the contract, and the rights bestowed by it, and if good according to the laws of that country, is good every where. 1 Bos & Puller, 13S: 2 Bos & P. 263: 1 Bac. Abr. 231. If the contract was good to pass the right to freedom in Illinois, although made to evade the laws of a State to which the parties returned, yet it cannot be avoided and cancelled. Thus, in England, a contract of marriage made and executed in Scotland, by British subjects, and designed to evade the laws of England, has been held to be good and effectual. Bull. N. P. 113: 4 Bac. Abr. ’536: 1 Blac. Com. 440, in notes: 4 Eng. Eccl. Rep. 485.
    So where persons go beyond the seas. 10 East, 282. And this is so, though it would have been a felony in a minister to have married the same parties at home, without publication of bans. Madox vs. Peterborough, 1 Modern, 22.
    So it has been held in Massachusetts, that a marriage between a mulatto, entered into in Rhode Island, where such marriage is lawful, between citizens of Massachusetts, made to evade the laws of the latter State, is good. 16 Mass. Rep. 157.
    The reason of this can only he, that the contract is executed and complete, and being made where there was no prohibition, was good in all countries where the parties might reside. The laws of England and Massachusetts, being territorial, could not reach it. Har. notes to Co. Lit. 796, n. 43. But it is unnecessary to pursue the examination funher, for whether the contract was made to evade the laws of Tennessee or not, was a question of fact properly submitted to the jury in the charge of the court; and they have found that it-was not so made; and the evidence in the case well warranted them in their finding.
    6. The only remaining question necessary to be noticed, is, whether the deed of manumission was executed in accordance with the laws of Illinois. As has been before seen, the constitution of that State does not per* mit involuntary slavery within its limits. There is no statute but the act of 1819, which is embraced in the revised code of 1829, in force in that State, upon the subject; all the rest being mere territorial regulations, and abolished or repealed by the constitution. The act of 1819, as reported in the revised code, does not prohibit the manumission of slaves coming from other States, but requires that the master shall give bond and security that they will not become a county charge. It points to no form in which the manumission shall be made, whether by deed or by parol, nor does it require any registration of the manumission. See acts of 1819, p. 354, Sec. 1.
    In this case, the evidence of Latimore and the recitals in the deed, show that the security required by the act, was given; and even if such security had not been given, the act only enforces the penalty upon the master, and not the slave, consequently the emancipation and right of the slave to freedom would have been effectual without it; as was held in New Jersey. 1 Coxe’s N. J. Rep. 165.
    The object of that act is not to prevent emancipation, but is to secure the country from the dangers of pauperism.
    The constitution of Illinois and the statute adopt the common law principles in relation to slavery; so that any act, whether by deed or parol, amounting to a recognition of the party s rights to freedom .will be sufficient to liberate him. In Kngland, by the common law, a villain could be freed by deed, or by the lord contracting with him as a free man, and no formal act was necessary. 2 Blac. Com. 94: 2 Kent’s Com. 209.
    In New Jersey, a promise to liberate a slave at a certain day, and an acquiescence of the person after the time to the claim of freedom, has been held sufficient. 1 Coxe’s N. J. R. 332.
    In New York, a slave may be manumitted by deed or parol. 14 John R. 188: 10 John R. 53: 1 Cowen’s R. 127.
    And in Kentucky, the removal of a slave to the north western territory to reside, with the consent of his master, was held to entitle him to freedom. 3 Monroe’s R. Rep. 104: 2 Marsh. Rep. 467.
    This construction upon the acts of the master is in favor of liberty, and therefore right. Nothing more should be., nor is any thing more necessary, than the assent of the master that a slave should be free, in a country where there is no law prescribing a particular mode of emancipation, to entitle a slave to his freedom.
    It seems to me - that ail the law requires has been done in this case to give the plaintiff his freedom, and that nothing erroneous in the verdict appears, upon which the judgment ought to be reversed.
   Peck, J.

delivered the opinion of the court.

This was an action brought by Phill, a man of col- or, against the plaintiffs in error in the circuit court of Sumner county, for tresspass and imprisonment, to try his right to freedom. The issue to the country is on this point. The principal evidence from the record appears to be, that the elder Hadley had been the owner of the plaintiff below, with others; that he was desirous to free his slaves, had applied to the county court of Sumner, an(] pad failed in bis application; he then petitioned the legislature, where he also failed. Subsequently, and not long before his death, he conveyed the 'negroes to Lati-more, Phill inclusive, with an express understanding that he was to take them to Illinois and liberate them from the bonds of slavery. Latimore took the negroes to the State of Illinois, where he remained a few days, and while there, executed to them a deed of emancipation, which deed recites upon its face, that he, the said Lati-more, had that day given bond agreeably to the laws of the State of Illinois in the requisite penalty, that said persons so liberated, should not become a county charge. The reading of this deed was objected to, but Latimore appeared in open court and acknowledged that he had executed the same, and proved by his own oath the taking of the negroes to Illinois with the intent of freeing them, that when they left Tennessee, it was the intention of all concerned that the negroes should become citizens of Illinois, and there to remain. But Phill and others of the negroes expressing a desire to return with him, Latimore, to Tennessee, they took counsel if the said negroes could return without endangering their liberty. They were advised, that being free they might go where they pleased; thereupon they returned, waited upon their aged master until his death, and were then seized as slaves by the plaintiffs in error. The elder Hadley, when he made the bill of sale to Latimore, was aged upwards of seventy years, was changeable in his affections, had expressed great hostility to his family, but both before and after expressing such hostility, had expressed .himself in favor of emancipation. He disposed of his property by gifts to prevent it going to members of his family, but shortly before his death he became reconciled to them.

The court charged, that the plaintiffs were not bound to show what the statutes of Illinois were upon the subject of emancipation; by common law, slaves might be manumitted by deed alone; and if said Latimore went with plaintiff to Illinois, and their original intention was not to return to Tennessee, and the deed was executed and immediately afterwards came to the conclusion to return to Tennessee, yet it would not be an evasion of the laws of Tennessee, but the emancipation would be effectual.

The jury rendered a verdict in favor of the defendants in error.

The first point made in argument is that which arises upon the demurrer filed to the plea. It is said there was \error in permitting it to be withdrawn, and a replication to be filed. We think otherwise. It has been the constant course of the courts to allow amendments to reach the justice of the case; our acts of Assembly require that it should be permitted, and when subsequently, a trial has been had upon the merits, the court here will not determine the cause, perhaps against the justice of it, upon technicality, and especially in a case like the present, where the matter to be settled is of more consequence to one of the parties than a mere right of property.

The discretion exercised in allowing the amendment was properly exercised. There appears to be some irregularity in coming to an issne after replication filed. There is a demurrer, though not in form; it appears to have been entered in brief to the replication; but as there is an issue and a trial upon it, the demurrer will be considered as waived by the parties.

The second point and which is the main one in the cause, assumes that the trip to Illinois, the giving the deed there to the negroes, was mere form, done to evade the operation of the laws and policy of Tennessee, and therefore void.

We are all of opinion that this question, if the law be as contended for by plaintiff in error, was wellleftto the jury in the charge of the court, that if the intention was bon a fide to free the slaves, and Latimore having the title, conveyed them into a country, where by the constitution and frame of government involuntary slavery is not tolerated, and there complied with the laws, which made them free, emancipation followed as a consequence, and once free in Illinois, the return to Tennessee does not replace them in the condition of slaves. The laws of Illinois are produced to show that strict compliance has not been had in that State so as to secure freedom. Some of those laws were territorial regulations, which it must be seen,, became inoperative when the constitution of Illinois was framed; and in this we are confirmed by the revised code of 1829, which does not bring those laws forward as being in force and use.

We do not find any thing in the laws of Illinois conflicting with the right claimed by the plaintiff below, as stated by the court; the proof of invalidity of the emancipation must come from those who in this case are charged as trespassers, prima facie. The act of emancipation, so far as facts are given us to judge of, is consistent with the laws of the community where the act took place. There is, therefore, no conflict between the facts proved and the finding of the jury. If it be true as contended, that the original design was to evade the laws of Tennessee, and that the return of the plaintiff into the .State is inconsistent with our policy, still that will not replace them in the condition of slaves. To know what the policy of a country is, we must look to the laws. Tennessee, in expressing her policy, has chalked out the mode of emancipation to be pursued here. If this State designed to make such acts as this record presents nullities, then express enactments should be shown. The argument is, that if such emancipation in Illinois becomes effectual and the negro returns, the county in Tennessee where he may settle, has no indemnity, should such emancipated person become a county charge. This may be true, but it ig a casus omissus, and the evil, if it be one, is not remedied by any enactment. We cannot for the sake of preserving what is termed our policy from violation, make the law; it is enough for us to administer such as are made to our hands.

This case having been argued with much zeal and ability, it has been deemed proper to state the case at large, and repeat the law touching amendments, although the rules of decision have long since settled the practice. Many of the facts in the case have nothing to do with the matter really in issue, but as they have been gravely brought forward, it was thought best not to drop them in the opinion.

Judgment affirmed.  