
    *Montgomery, a Pauper, v. Fletcher. Whiteford v. Smith, a Pauper. Cordell v. Smith, a Pauper.
    December, 1828.
    Slaves — Importing—Case at Bar. — A son acting for bis father, removed with his father’s slaves from Maryland to Virginia in March, 1797; bought a farm for his father, and settled the slaves on it. He took the oath, within sixty days, prescribed by the Act of 1792. to be taken by those who remove from another State to this with slaves. The father shortly after removed also, and became a citizen, but did not take the oath. — The Law was complied with, for although the son was not the owner, yet he was the importer, and the agent of the owner. The paupers therefore, who sued for their freedom, adjudged to be slaves.
    These cases were all considered together; the first and third were on appeals from the Superior Court of Eauquier; the second on a Supersedeas to a Judgment of the same Court.
    In the first case, the Plaintiff, Jonas Montgomery, á negro man, brought his suit in forma pauperis, to recover his freedom from Robert Fletcher, the Defendant, who held him as a slave. At the trial in July, 1826, the Plaintiff excepted to an opinion of the Court. The Bill of Exceptions states, that the Plaintiff proved that Robert Whiteford, a citizen and inhabitant of the State of Maryland, intending to remove thence with his family and slaves, and to become a citizen of this Commonwealth, in the month of March, 1797, sent his son, Hugh Whiteford, to the County of Fauquier, in this State, and sent with him from Maryland to the said County, sundry slaves, the property of the said Robert Whiteford, amongst whom was the Plaintiff, who was then about nine or ten years old: that the said Hugh Whiteford, who also removed to Virginia with an intention of remaining, and has ever since remained therein; purchased a farm for the said Robert Whiteford, in the County aforesaid, and settled the said slaves upon it, and managed the farm and slaves as the agent of the said Robert Whiteford, who in pursuance of his said original design, himself removed *from the State of Maryland to the said tarm in the month of August, 1797, and resided upon and held the same, and the said slaves until his death, which happened about 1804. The Defendant proved, that the said Hugh Whiteford, within sixty days after his said removal, and bringing with him the said slaves, took the oath, in due form, which was prescribed by Law to be taken by persons intending to remove from any of the United States, and to become citizens of this Commonwealth, and importing slaves, which oath was taken before a Justice of the Peace for the County of Fauquier. The Defendant also proved, that after the death of the said Robert Whiteford, in 1805, the Plaintiff was sold as a slave by the legal representative of said Robert, to the Defendant, who has ever since held him as,a slave; and thereupon the Defendant, by his Counsel, moved the Court to instruct the Jury, that if they were satisfied of the truth of the foregoing facts, the oath so as aforesaid taken by the said Hugh White-ford, was a compliance with the requisition of the Act of Assembly, so as to prevent a right to freedom from accruing to the Plaintiff, by his being so imported into this Commonwealth, and that it was necessary for the said Robert Whiteford, upon his said removal, to take the said oath, to prevent the right to freedom accruing to the Plaintiff, which instruction the Court gave, and the Plaintiff excepted. There was a verdict and judgment for the Defendant, and the Plaintiff appealed.
    In the second case, Benjamin Smith, a negro man, a son of Fanny Smith, brought his suit in forma pauperis, against Mary Whiteford, to recover his freedom. At the trial, before another Judge, in November, 1826, who then held the Superior Court in Fauquier, the same instruction was moved for by the Defendant as in the first case, and the same facts proved, except, that in this case,the mother of the Plaintiff was brought in by Hugh Whiteford, the Plaintiff being born after the introduction of his mother *into this State, and the certificate of the Justice before whom the oath was taken, was produced. The Justice certifies that, “Hugh Whiteford, who had just removed from the State of Maryland, into this Commonwealth, and into this (Fauquier) County, the following slaves, viz: Fanny, Jonas, and Jack, took the oath prescribed by Daw to prevent the further importation of slaves.” The Judge differing in opinion from the Judge who tried the other case, refused the instruction, and there was a verdict and judgment for the Plaintiff.
    Leigh, of Counsel for Mary Whiteford,
    in the petition for a Supersedeas, stated, that Hugh Whiteford was the actual importer: that in the case of M’Michen v. Amos, 4 Rand. 134, the wife of the importer of the slaves took the oath, and that was held not to be a compliance with the Act of 1792. Here the actual importer took the oath, though the slaves imported belonged' to his father: if the importer was not the proper person to take the oath, then, though the importation was clearly legal- under the circumstances, no person could take the oath, for the owner could not, as he was not also the importer. The Supersedeas was awarded.
    In the third case, the action was brought by Fanny Smith, and her daughters Eleanor and Harriet, who, in forma pauperis sued William B. Cordell, to recover their freedom. This suit was tried at the same Court at which the second case was tried. The Defendant demurred to the evidence of the Plaintiffs: that evidence proved the same facts as are set out in the other two cases as to the importation, and the oath taken by Hugh Whiteford. In addition thereto, there was evidence to prove that these Plaintiffs were sold at Robert Whiteford’s sale to one Israel Johnson who agreed to take $300 for them from the Plaintiff, Fanny Smith, who, on the payment thereof, was to be free, as well as her children ; but he made a Bill of Sale of them to one Thomas Chappie, who had assisted *her with a part of the money: that Chappie permitted them to act as free persons for ten years, but that a part of the money being still due to him, he at length, in 1825, sold them to the Defendant as slaves. They were never legally emancipated either by Johnson or Chappie.
    A verdict was found for the Plaintiffs, subject to the opinion of the Court on the demurrer to evidence, and the Superior Court as above mentioned, gave Judgment for their freedom. The Defendant appealed.
    The Act of Assembly on which this question turns, is to be found in the Revised Code of 1792, ch. 103. The second section of that Act declares, that “slaves which shall hereafter bo brought into this Commonwealth, and kept therein one whole year together, &c. shall be free.” Sec. 4: “Provided, that nothing in this act contained shall be construed to extend to those who may incline to remove from any of the United States, and become citizens of this, if, within sixty days after such removal, he or she shall take the following oath before some Justice of the Peace of this Commonwealth: I, A. B., do swear, that my removal into the State of Virginia, was with no intent of evading the Daws for preventing the further importation of slaves, nor have I brought with me any slaves with an intention of selling them, nor have any of the slaves which I have brought with me been imported from Africa, or any of the West India islands, since the first day of November, one thousand seven hundred and seventy-eight. So help me God.”
    Briggs, for the Appellant, Montgomery, and for the Appellees, Smith, in the other two cases.
    Stanard, for the Appellee Fletcher.
    Ueigh, for the Appellants Cordell and Whiteford.
   ^December 17.

The PRESIDENT

delivered his opinion.

Passing by some minor points, which it is not material to notice, these cases will turn on the following facts: Hugh White-ford, as agent of his father, the owner of the slaves whose freedom is in question, who then, and ever afterwards managed the affairs of his father, came from Maryland to Virginia, purchased for his father a farm, to which, in the Spring of 1797, he removed with the slaves, and before he was followed by his father, which happened soon after, went before a Magistrate and within the sixty days took the oath prescribed by the Act concerning slaves, &c.; and the question is now raised, after the lapse of more than thirty years, whether he was competent to take that oath, he not being the absolute owner of the slaves: and the case of M’Michen v. Amos, 4 Rand. 134, is relied on as having decided it in favor of the slaves. In that case there was no distinction taken between the proprietor of the slave and the person bringing him into the State, The only question submitted by the Jury was, whether the husband, being the owner and importer, the wife was competent to take the oath, and the decision was, that the person bringing the slave into the State was alone competent to take the oath, which was entirely consistent with the Act, which does not advert to the owner, either in the clause imposing the penalties, in that giving freedom, or in that prescribing the oath. Nor can a contrary decision be implied from the opinion of the Judge in the first of the cases now before us. The son, (who was the agent of the father,) and the father, were the importers of the slaves. Both intended to become, and did become citizens of Virginia, by which the Daw was satisfied, its policy being to exclude slaves generally, but to admit them when brought by persons removing from another State and becoming citizens. Either the son or the father might take the oath. Being taken by the son, it was sufficient, within the letter and spirit of the Act. It is best to lay down no general rule in these cases. Where'xthe Act has been substantially obeyed, and its policy advanced, it cannot be decided to be violated, and heavy penalties inflicted, upon nice distinctions drawn in supposed cases.

In the first case, in which the instruction of the Judge to the Jury was proper, the Judgment is to be affirmed. In the case of Cordell v. Smith, the Judgment is to be reversed, and Judgment rendered for the Defendant; and in the case of White-ford v. Smith, the Judgment is to be reversed, and a new trial awarded, on which, the instruction which was asked for by the Defendant is to be given, if again required.

All the other Judges concurred.  