
    Gwinn v. Bugg.
    October, 1769.
    Mulattos — Binding Out by Church Wardens.
    The case was this. A Christian white woman between the years 1723 and 1765, had a daughter, Betty Bugg, by a negro man. This daughter was by deed indented, bound by the churchwardens to serve till thirty-one. Before the expiration of her servitude, she was delivered of the defendant Bugg, who never was bound by the churchwardens, and was sold by his master to the plaintiff. Being now twenty-six years of age, and having cause of complaint against the plaintiff, as being illy provided with clothes and diet, he brought an action in the court below to recover his liberty, founding his claim on three points. 1st. That himself having never been bound by the churchwardens, the master of his mother had no right to his service. 2nd. That if he had, yet he had forfeited it by selling him to the plaintiff. 3rd. That if both these points were against him, yet the plaintiff bad forfeited his right by his failure to provide him with necessaries. The fact of ill treatment was, I suppose, proved in the court below, for this as well as the defendant not having been bound, was set forth in the record as the grounds of the judgment; from this judgment Gwinn appealed, and it now came on to be argued before the General court.
    Pendleton, for the plaintiff.
    That the defendant is obliged to serve *till thirty-one years of age, a bare, state of the several acts of Assembly will evince. The act of 1705, c. 49. s. 18. enacts, that where a white woman shall have a bastard by a negro or mulatto, that bastard shall, by the churchwardens, be bound to serve till thirty-one. It says nothing of the issue of that bastard, who, therefore, by that law were left in freedom. Then comes the act of 1723, c. 4. s. 22, enacting, that where such mulatto bastard, as by law was obliged to serve till thirty-one, shall have a child during her servitude, such child shall serve to the age of thirty-one. This extended the servitude, then, to the second as well as the first generation, and here a binding was not made requisite: the binding of the mother and a birth during her servitude, being sufficient to bring a mulatto of the second generation under the operation of that act. The act of 1753, c. 2. only re-enacts these two acts as far as concerns the present case. To apply this doctrine, then; a Christian white woman has a daughter Betty Bugg, by a negro. Betty Bugg, is thereupon bound according to the act of 1705. Betty Bugg, during her servitude, is delivered of the defendant. On him, therefore, the act of 1723, operates, by declaring that ‘where a female mulatto (Betty Bugg) bylaw obliged to serve till thirty-one, shall, during servitude, have a child (the defendant) such child shall serve till the age of thirty-one.’ But some objection will be made, perhaps, from the act of 1764, c. 7. There are only two clauses in that act, which can be cited for this purpose. The first is section 3rd, ‘where a white woman has a child by a negro or mulatto, those (that is, the children of the white woman, not the children of a mulatto as the defendant is) hereafter born, or already born and not yet bound, shall be bound to serve, the males till twenty-one, the females till eighteen.’ This clause then is of no avail to the defendant. The second is in section 4th. ‘Thq children hereafter to be born (not those already born like the defendant,) of mulatto women during servitude, shall serve, the males till twenty-one, the females till eighteen.’ The defendant’s mother then was properly reduced to servitude by an actual binding under the act of 1705; himself is put into that condition without a binding by the act of 1723. Nor is he relieved by the act of 1764, because he is not the child of a white woman, and because he is not the son of a mulatto born after the passing of that act. Then he urged that the appellant’s right is not forfeited by ill treatment of the defendant. It might well be questioned whether the clauses in the act of 1705, which were reenacted in 1753, c. 2. s. 5. 6. ordaining that servants, b3' act of Parliament, indenture or custom, shall be comfortably provided with necessaries and humanely treated; and on default herein ^giving the court a power to sell the servant and deliver the money to the master; it might be questioned, I say, whether this act was intended to extend to the children of mulattoes, who are bound neither by act of Parliament, indenture or custom, but by act of Assembly. The humanity of courts, however, has extended this act to their relief, and I shall not draw it now into question. It suffices for my purpose that emancipation is not the remedy provided by the act of Assembly in case of ill treatment. The legislature, paying a just regard to the right of the master, while they extended their care on behalf of the servant, have directed, that on the first complaint, the court shall prescribe to the master what treatment is proper for the condition of his servant. If this admonition is disregarded, a second remedy is provided against the said complaint, which is a sale of the servant, and payment of the money to the master. Here the servant is relieved, by a sale to a kinder master, and the master’s property little violated by its commutation into the form of money, and both of these are the purposes of substantial justice. But how far have they been regarded by the judgment of the court below? Por the first, to be sure, for the comfortable state of the servant, that judgment has most liberally provided, by taking him from his master and subjecting him to no other. But how are the rights of the master preserved? Not at all. His servant is taken from him, and no equivalent returned. This judgment then, disregarding the rights of the master, is substantially different from that prescribed by the act of Assembly, and is therefore erroneous.
    Mason, for the defendant,
    relied principally on the second point; that the former master of the defendant could not transfer him ; and so the plaintiff had no right. He insisted there was a trust in the master coupled with his interest, that, though he was entitled to service, he was also bound to maintain comfortably. That where ever there was a trust it could not be transferred, and instanced the case of an apprentice, and one of the court remembered a case of ---— ------ where this very point was so adjudged. Yet judgment reversed, and quaere, if the great clearness of the first and third points, which a'lqne were assigned in the record as the grounds of the judgment, might not prevent the court from attending minutely to the second, which seems to be in favor of the pauper.
     