
    Ellis v. Baird and Baker.
    Decided, Dec. 17th, 1819.
    1. Appellate Practice — Smit ier Freedom — Decree oi Dismissal Affirmed witljcrcii Prejudice.— A suit in Chancery tor freedom being dismissed for want of prosecution; the decree was affirmed, -without prejudice to any suit at. la,w or in eunity which the appellant, might be advised to bring-, pursuing the preliminary measures to prevent vexatious suits, proscribed by the Act of Assembly.
    See Edit. oi 1794, 1803 and ’14, c. 189 p. 34(i.
    Edward Ellis a man of colour, exhibited a bill in the Superior Court of Chancery for the Richmond District, against John Baird and John Baker, for an Injunction (which wras granted) to prevent the defendant Baker from carrying the complainant out of the Commonwealth; and for a decree against both defendants for his freedom. The defendant Baker answered the Bill, in July 1818. — The plaintiff by Counsel, instanter, replied generally; and thereupon Commissions to take depositions were awarded. At December Rules 1818, the cause was set for hearing; and, on the 20lh of January 1819, the suit was dismissed with costs, 1‘the plaintiff who was solemnly called, failing to appear and farther prosecute.”
    At June Term 1819, a motion was made to re-instate the suit, upon a certificate from the Sheriff of Henrico County, dated June 14th 1819, shewing that the said Edward Ellis was then confined in the Jail, on account of an execution levied upon him as the property of John Baker, and wished to be discharged from confinement, for the purpose of obtaining testimony in support of his claim to freedom. Chancellor Taylor rejected the motion, oil the ground that he did not “perceive that the defendant Baird had been paid a balance with interest due to him for the plaintiff.” And thereupon the plaintiff appealed.
    
      
       See monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Oo., 1 Rob. 208.
      The principal case is cited with approval In Dock-ridge v. Sharrot, 5 Leigh 381; Handley v. Snodgrass, 9 Leigh 493.
    
   *By the Court.

The Decree in this case is affirmed; but, (in the opinion of a majority of the Court,) without prejudice to any suit at law or in equity, which the appellant may be advised to bring for his freedom, pursuing the preliminary measures, to prevent vexatious suits, prescribed by the Act, “to amend an Act, entitled, “an Act to reduce into one Act the several Acts concerning Slaves, free negroes and rnulattoes, and for other purposes,” passed the 25th of Dec. 1795.  