
    Thomas Linam v. Samuel O. Johnson.
    The act of 1800, authorizing any person to seize, and convert to his own use, a slave emancipated contrary to the provisions of that act, is not repealed by the act of 1820, prohibiting the emancipation of slaves except by act of the Legislature; but both acts are to be construed together as parts of one system.
    The right of seizure by strangers is inconsistent with a right of property, or a right of possession, in the former owner: Therefore, where the latter has emancipated a slave contrary to law, although he may have the right to reclaim him by seizure and conversion, under the act of 1800; yet without such seizure he has no right on which he can maintain trover, although the slave has not been formally seized, and converted by any other person.
    So, if the owner, without a formal act of emancipation, permit his slave to go at large, and to exercise all the rights, and enjoy all the privileges of a free person of colour, the slave becomes liable to seizure as a derelict, and the owner cannot maintain trover for him, without previously reclaiming him by seizure and conversion under the act of 1800.
    Tried before Mr. Justice Johnson, at Union, August Term, 1830.
    This was an action of trover for a negro slave, known by the name of Bill Brock. Bill originally belonged to William Qrreli Brock, and upon his death, some time previous to the year ISIS', went into the possession of Joseph Brock, who on the 24th of January, in that year, in consideration of the sum of $900, transferred him, by a formal bill of sale, to the plaintiff: Of this sum, $300 was paid in cash, and the residue by the plaintiff’s notes.
    There was a contrariety of evidence as to the character of this sale. The plaintiff endeavoured to establish that his purchase was made for his own use ; and he proved that he had so declared at the time : He further proved, that Bill had resided on his land after the sale, and that his overseer had cultivated the same land on shares with Bill, for one year; but-the overseer did not know whether plaintiff took any share of the crop, nor was there any evidence that he had ever participated in the profits of Bill’s labour.
    On the other hand, it was proved, that Bill had, ever since the sale, dealt and trafficked as a free man: that he was regarded as such in the neighbourhood from that time, and had been enrolled as a pioneer in the militia : That the land on which he lived was known by the name of Bill Brock’s place, although it belonged to the plaintiff; and that Bill had, to all appearance, cultivated it for his own benefit. It further appeared, that Bill had been permitted to hire his time and work for himself, both by William Orrell Brock, and his son Joseph Brock; that he was industrious and provident, and had accumulated money. It seemed probable, from the testimony, that Bill had advanced the cash part of his purchase money; and the plaintiff admitted, that when he took the bill of sale, he gave it up to Bill for his protection. Joseph Tucker, a witness, examined by commission, testified, that in November, 1822, he had, at the request of Bill, stated an account between him and the plaintiff, for the balance due the latter on the purchase of Bill; that Bill’s discounts amounted to $1300, and there was abalance due to him on the account by the plaintiff. That this account had been presented to plaintiff, who did not dispute it, but required time to examine his own accounts. The witness considered Bill a free man from that time ; and it appeared that from that date he had paid the poll tax levied on free persons of colour.
    In 1823, the defendant became the guardian of Bill Brock, as a free man of colour, conformably to the provisions of the act of 1822. In 1824, the plaintiff demanded Bill from him, and upon his refusal brought this action.
    The jury, under the direction of the presiding Judge, found for the defendant; and the plaintiff how moved to set aside their verdict, and for a new trial, on the following grounds :
    1. That the right, conferred by the act of 1800 on strangers, to seize and convert to their own use, slaves informally emancipated, is abrogated by the act of 1820, which prohibits the-emancipation of slaves in any form.
    2. That admitting a slave were liable to seizure, as derelict, without a formal act of emancipation ; yet in this case the plaintiff had not lost his right of possession, until the final payment of the purchase money in 1822, after which time the right of the defendant to seize under the act of 1800, was abrogated by the act of 1820.
    3. That admitting a right in defendant to seize and convert in 1823, yet his becoming the guardian of Bill as a free man, was not such a seizure and conversion as would divest plaintiff’s title.
    4. That until an actual seizure and conversion, by some other person, the plaintiff’s right remained, and he might reclaim pos- • session by an action of trover.
    Irby, for the motion.
   ■Johnson J.

delivered the opinion of the Court.

Before the act of 1800, 2 Faust, 355-7, there was no law prescribing the mode in which a master should emancipate a slave. He might therefore do it by deed, or will, or by parol, or in any other way. That act provides that it shall be by deed, duly recorded, and accompanied by the certificate of a magistrate and five free-holders that the slave, intended to be emancipated, is-not of bad character, and is capable of gaining a livelihood by honest means: And it it is declared, that if any slave shall be emancipated, or set free, otherwise than according to the act, it shall be lawful for any person to seize and convert to his own use, such slave, so illegally emancipated and set free. The act of 1820, (see acts of 1820, p. 22,) makes no alteration of the law, except to declare, that from thenceforth no slave shall be emancipated but by an act of the legislature.

It is true, that the taking possession by the defendant, was not intended as a- seizure or conversion to his own use, but on the contrary, was evidently intended to protect him in the enjoyment what he supposed was his right of freedom; and supposing that the purchase from Brock by the plaintiff, was intended tQ operate, eo instanti, as an act of emancipation, it becomes a question, whether the plaintiff is intitled in law to maintain this action against the defendant.

„ „ 1 B1 Com. 89. Doug. 30.

To enable a plaintiff to maintain trover for a chattel, he must have either the right of property, or the right of immediate possession. Now I take it as very clear, that the plaintiff, by the act of emancipation, parted with both. The act of 1800 transferred them both to him who would seize upon the slave, and convert him to his own use ; and that right is inconsistent with the plaintiff’s right of property and possession. I am not prepared to say, that the plaintiff might not, under the act, himself have seized upon the slave, and thus have retained the right which he had abandoned, and superseded all others ; but here there was no such seizure. If, however, the act of emancipation was, as supposed by the witness Tucker, not consummated until 1822, when he attempted a settlement of accounts between Bill and the plaintiff, then the question arises whether the provisions of the act of 1800, authorizing the seizure and conversion, were not repealed by the act of 1820, and consequently whether the plaintiff had not the right at any time after to resume the possession.

The act of 1820, contains no repealing clause, special or general, and it is a well known rule of construction, that a previous act shall not be abrogated by a subsequent one, unless , . . . . r , J , ^ their provisions are inconsistent, but on the contrary, they are to be taken together, when they are upon the same subject, as necessary to the whole system. Now, the act of 1820, as before remarked, alters that of 1800, only so far as relates to the mode of emancipation, and is, so far, not only consistent with the right of seizure by another, but must, without it, be itself a perfect nullity. The act of 1820 in itself contains no penalty, or sanction, and if the right in another to seize, given by the act of 1800, is taken away by implication, the plaintiff may recover the property at any time, and subject him who retains it from him to an action ; and thus in despite of the law give effect to an illegal mode of emancipation.

There is another view arising out of the circumstances of this particular case. From the year 1818, Bill, with the knowledge and consent of the plaintiff, exercised all the rights, and enjoyed all the privileges of a free man of colour; and whether we refer the act of emancipation to that period, or to 1822, the time fixed by the witness, Tucker, the manner o'f it was against the law, and the act itself utterly null and void. He was then a slave, without an owner, and cast upon society as a derelict, which, according to the law of nature, any one migbf appropriate to his own use. The defendant has, at most, done no more, and that with the humane view of giving effect, as far as he could, to a contract which the plaintiff had himself made, upon most ample consideration, and which he now seeks to avoid.

Motion refused.  