
    Harris vs. Clarissa, and others.
    
    A, a citizen of Maryland,'in the year 1800, made his last will and testament, in which is the following clause: “And further, my mind and will is, that. all the negroes which I have hereinbefore given to my children, which are under the age of twenty-five years, and also, all the young'ne-groes which I may have in my possession at the time of my decease, shall have their freedom, when they respectively arrive at the age of twenty-five.” Held, that the children of the female slaves, who by this provision were entitled to be free at twenty-five, were free also, although horn before their mother was twenty-five years old.
    When a female slave and her children have been held in slavery, they may maintain a joint action to establish their freedom;
    This was an action of trespass"and false imprisonment, brought by the defendants in error against the plaintiff. The defendant below pleaded, that they were slaves for life. Upon the trial it was proved that Clarissa was originally a slave, the property of Thomas Bond, a citizen (at the time of his death) of the State of Maryland. Bond died in 1800, and his last will and testament contains the following clause: “ And my mind and will further is, that all the negroes which I have hereinbefore given to my children, which are under the age of twenty-five years, and a]so a¡i the young negroes which I may have in possession at the time of my decease, shall have their freedom when they respectively arrive at the age of twenty-five.” Clarissa was one of the young negroes belonging to said Bond at the time of his death, she being then about ten years old. Hannah, Delia and Edward, three of the plaintiffs, are children of Clarissa, and were born after the death of said Bond, and before the said Clarissa arrived at the age of twenty-five. Edy and Martha, two of her children, also plaintiffs, were born after she was twenty-five years old. They were all bom in Tennessee, and neither of the children are twenty-five years old.
    It was admitted that slaves could be-set free in Maryland, in 1800, by last will and testament.
    The defendant derived title to the plaintiffs through Mrs. Eliza Love, a daughter of said Thomas Bond.
    The court charged the jury, that Clarissa would not be free until she arrived at the age of twenty-five. That when she arrived at that age she ivas free, and all her children born after that period were free; but as to those born before she was twenty-five, they would be slaves until they arrived at the age of twenty-five, and then they would also be free; and that in no case could they be held and deemed slaves for life.
    The verdict of the jury was, “that they find the issues in favor of the plaintiffs; and that the said Clarissa and her two youngest children, Edy and Martha, are not slaves; and that the three eldest children, Hannah, Delia and Edward, will be free when they arrive at the age of twenty-five.
    A new trial was moved for, but refused by the court.
    
      T. II. Fletcher and G. S. Yerger, for plaintiff in error.
    1st. If the court charged the law correctly, which is by no means admitted, still the defendant is entitled to judgment. If the three eldest were slaves until they arrived at the age of twenty-five, they could not sustain an action until that period arrived: because, until then they .u i - XT . . , , . , . were the slaves ot Harris. And ii they could not mam-tain the action, and others join with th.em in the action, who'could sue, the action being joint, is lost to all. 1 Sanders, 28, note 2: 2 Caine’s Rep. 108: 7 Cranch’s Rep. 15S.
    2d. A joint action for a false imprisonment cannot be sustained, even if all the plaintiffs were capable of suing separately. It is a several wrong to each. 2 Sanders, 117a: Dyer’s Rep. 19: 2 Yin. Ab. 54, p. 29, S3.
    3d. All the children born before Clarissa was twenty-five, are slaves for life. The issue follow the condition of the mother. If she was a slave when they were born, they are slaves, and her obtaining freedom subsequently, cannot alter their condition.
    The will of Mr. Bond does not give a present right to freedom to his young negroes: until twenty-five they remained slaves: if they died before that period, they died slaves. They are entitled to their freedom upon a mere contingency; which contingency is made still more uncertain from the fact, that the laws of Maryland would require her to be sold if the testator’s personal estate is insufficient to pay his debts, although his real estate is amply sufficient. 5 Har. and John. Rep. 51. 5 Am. Dig. 496.
    In this, and most of the slave-holding States, the law in relation to slavery is derived principally from the civil law. By the civil law, the increase of a slave entitled to future freedom, or entitled to freedom upon the happening of some contingency, were slaves, if born before the period arrived, or the contingency happened. Jus. Inst. Liber 1, title 3, s. 4: Digest, Liber 40, title 7, s. 1: and Liber 40, title 1, 2, 3, 4, 5, 6, &c. 2 Ran. Rep. 241, 242.
    In Virginia and Kentucky, slaves can be set free by will, the will itself, without the concurrence of the State, operating as an immediate or future gift, according to its terms. In both these States it has been decided, in cases where the will used the same, or nearly the same words with the one under consideration, that the increase born before the period arrived when the gift of freedom was to attach, were slaves. Maria and others vs. Sfabugh, 2 Ran. Rep. 228: Ned vs. Beal, 2 Bibb’s Rep. 298. So in Louisiana, 8 Martin’s Rep. 218.
    In Virginia and Kentucky, the rule which prevails in this State, (to wit, that the increase of slaves born during a life estate, belong to the remainder man,) is the settled law. This rule has no application to the present case; it is a mere rule of property, governing slaves as property. No person can take or hold property in himself; if he could, he might sell himself, and by his own act become a slave. There cannot be a derise of property in a female slave to A, for twenty-five years, with a remainder in the slave, to the slave herself. If she is a slave, she cannot hold property of any kind; and if she is free, then there can be no property in her which can be limited either to herself or any other person. Vide 2 Ran. Rep. 230, 231.
    4th. This case must be decided by the laws of Maryland. In that State it is settled, that upon a bequest of this kind, the children bom before the period arrives when the mother is to be free, are slaves. 6 HarNand John. 16, and 526.
    
      W. T. Brown, for defendants in error.
    1st. It being admitted by the record, that slaves could be set free by the laws of Maryland, by last will and testament, Clarissa, the mother of the other defendants, was clearly enti-tied, under the will, to her freedom at the age of twenty-five years. That event having~transpired anterior to the institution of this suit, she, of course, will be liberated.
    2d. Edy and Martha, two of the defendants, born after the mother’s arrival to the age of twenty-five years, are also free, following the condition of their mother.— See 2 Call’s R. 319.
    3d. Hannah, Delia and Edward, three of the defendants, children of said Clarissa, born after the death of the testator Bond, and before Clarissa attained to the age of twenty-five, are also free, upon the principle, that the gift of the right of freedom to their mother by said clause, being in the nature of a legacy, was complete, and vested in interest at the death of the testator Bond, though the possession or enjoyment of it was postponed until she attained to the age of twenty-five years. See 2 Mad. Chan. 15 and 17: 2 Call. R. 338: 4 Hen. and Munf. 411: Hawk’s Dig. 131: 1 Bur. R. 228: 3 Yes. 135: 14 East, 601: 4 Kent’s Com. 202 and 4.
    It is clear from these authorities, even if we consider the above clause as a mere devise of a chattel interest, and the mother’s interest an ordinary remainder, 'that it passed a present vested right. If so, , in regard to a devise of property, the doctrine applies with greater force to a devise of freedom. See the opinion of Judge Roane, delivered in the case of Pleasants vs. Pleasants, in 2 Call’s Rep.
    The counsel for the plaintiff in error admit the rule, as stated, that the offspring must follow the condition of the mother, but contend, that the mother of the defendants, under the above clause in the will of Bond, was absolutely a slave when Hannah, Delia and Edward were born, and so continued until her arrival to the age of twenty-five years.
    Then the dispute resolves itself into this simple question, what was the conditiori of the mother under the will of the sijjd Bond at his death?
    To prove that her condition was one of absolute slavery, the counsel mainly rely upon the cases in 2 Call. R. 300, 2 Rand. R. 228, 2 Bibb’s R. 298, one decided by the court of Louisiana, and a case from Maryland in 5 Har. and John. R. 526.
    
      The above cases I will examine in consecutive order, , , i i . . , and see if they settle the question in such a manner as to be binding and obligatory upon this court.
    The case in 2 Call, is a case nearly in point, but the judges were divided in opinion. Chancellor Wythe, before whom the case was tried below, in putting a construction upon the clause of the will in that case, which is similar to the one under consideration, did not hesitate to say, that it passed a vested right to future freedom; and Judge Roane, one of the judges in the court above, who finally tried the cause, in a very able and lucid opinion, declared the law to be, that the slaves under said clause, had an immediate right to future freedom, vested in interest, though the enjoyment of it was postponed to a future day; that the mother was only held in service until the contingency happened, upon which she was to be free; and that her children, bom during her time of servitude, were not slaves, but free persons. This is the substance of his opinion. The other judges were of a different opinion, and overruled the opinions of judges Wythe and Roane. But this case cannot have a controlling influence with this court, as it was a decision of a sister State upon a'question entirely new, which had not been discussed by them before, and upon which not only chancellor Wythe, but also judge Roane, one of the ablest judges that ever sat upon the bench in Virginia, differed with their brother judges. This case then leaves the question still open.
    The next case upon which the counsel rely, is in 2 Rand. R. 236. The judges decided this case altogether upon the statute laws of Virginia. To have given a different decision would have defeated the policy of the act of 1782; because the former owner would not have been bound to support the children born during service until they attained twenty-one. The act expressly makes that provision; and if it was not complied with, they would have been chargeable upon the county. In short, to have decided in favor of the slaves would* according to the opinion ot the judges, m effect, have repealed the act of 1782. But, notwithstanding the case was thus governed and controlled by a statutory regulation of their own State, and to have decided differently would have been tantamount to a repeal of their statute, yet the judges go on to discuss the principles of the civil law, as applicable to the case before them, and decide, that according to the civil law, the increase are slaves. Let us, for a moment, examine the principles^ of the civil law, as laid down, I understand, by the judges, and I think I will demonstrate that the principles recognized by the court never can obtain in this country. The judges say, in substance, that the civil law holds, that not only the children born of the mother during service are slaves, but also those born after the happening of the event upon which she (the mother) was to be free, and before an actual emancipation. For instance, if a female slave were bequeathed to another, to be by him set free at a future J;ime, or upon a certain contingency, and the time had come, or the contingency happened, but the slave not actually manumitted, the child born after the time or contingency happened, and before actual emancipation, is a slave. 2 Rand. R. 242. This rule or princi* pie of the civil law is contrary to the genius and spirit of our institutions. Under a rigid enforcement of this principle, a child born at this day, if it were possible, of the mother (Clarissa) would be a slave; she not having been actually manumitted, or in other words, has not gained her freedom by suit. From this view, it is clear the civil law cannot be resorted to, in order to regulate and establish the right of the defendants under the clause of said wall. But we must have recourse to the common law: 1st. because it is the .great fountain whence we derive all our rules of “civil conduct;” and, 2d. because it is in accordance with our republican institutions. It always favors liberty. See 2 Chit. Black. Com. 93.
    
      But even if the above cases from 2 Call and 2 Rand. are admitted to have decided the law, as contended for by plaintiff’s counsel, the same have been overruled and reversed by a subsequent case, decided [by the same court, in the 6th vol. Rand. R. 652. The following is the principle established by the court, as extracted from the 5th volume of the American Digest, 499: “A deed of emancipation by which the master manumits his slaves at his death, but directs that they shall serve him as long as he lives, and at his death go free from all persons, passes a present right to freedom,-reserving a right in th'e grantor to their personal services during his life, as a condition of the emancipation; therefore, a child born of one of the emancipated females, in the interval between the execution of the deed and the death of the grantor, is free from its birth.r’ This decision overturns and destroys the force of the authorities relied on by the coun--sel, and settles- conclusively the position I set out with# to wit, that according, to the principles- of tire'common law, which I have shewn must apply to this case, the clause in said will vested an immediate right, in interest, upon the death of Bond, to future freedom, in the said Clarissa, although the time at which she could asse'rt it was fixed at her arriving at the age of twenty-five years.-
    The case from Kentucky, in Bibb’s Reports, cited" by the counsel, is not worthy of notice; the reasoning of the court is too futile to deserve serious refutation; and I would barely remark, that the case in Bibb, and also the case from Louisiana, are professedly bottomed up-OTi the civil law, which obtains in Louisiana to the exclusion of the common law; and against which the whole of my argument has been directed, on account of the abstract injustice of its principles, and their inappli-*-cability to our existing institutions.
    But the case mainly relied upon by plaintiff’s counsel is the case of Chew vs. Gary, in 5 Har. and John. R. This was a petition filed by Chew, the appellant, against Gary, the appellee, representing that Mary Ann Wood made her last will, in which is this clause: “My will and desire is, that all my negroes shall be free, except my negro woman Nanny; and my will is, that she shall serve my mother, Ann Brown, during her life; and at her death my said negro woman Nanny to enjoy her freedom.” — ■ Nanny was the, mother of the appellant. The appellant was born during the life of Ann Brown, and subsequent to the death of Mary Ann Wood, the testatrix, and claimed his freedom in virtue of the aboye clause in the said will. The defendant demurred generally to the petition, and the eounty court ruled the demurrer good, and gave judgment for the defendant. From that judgment the petitioner appealed to the supreme court, where the judgment of the county court was affirmed. This is the whole of the case. The decision is the bare affirmance of the judgment below; without any reason, save a reference to the case of Hamilton vs. Craig, at page 16 of Har. and John. Hep.. As the above case of Chew vs. Gary seems to present the very question before the court, and as the case of Hamilton vs. Craig is cited as the only authority in the world for the decision, it becomes highly important to -examine -willt -care tlie points raised by the record in that case. The first point raised by the record, was upon the proper construction of a claim in a will, which, after mentioning several negroes by name, concluded by saying, “the above named negroes” should be free upon the happening of a particular event named, &c.; and the court construed “the above named negroes” to be words of description, and to embrace the increase as well as tbs mothers who were expressly named. This point, áo far from being an authority against the defendants, is rather in their favor, as the-issue, who were not named in the clause, were held to be entitled to their freedom along with their mothers, who were particularized and specified by name in said clause.
    The second, and the last point raised by the record, an(] decided, is, that an infant slave, unable to earn a sufficient maintenance and livelihood, cannot be manumitted under the act passed by the legislature of Maryland, of 1796, ch. 67, sec. 18. This is the only point raised by the record, and decided, that could possibly authorize the decision of Chew vs. Gary. The case is badly reported, and does not shew when Ann Brown died, or how old the slave Chew was at her death. From aught that appears in the report of the case, Chew might have been “an infant slave, unable to gain a sufficient maintenance and livelihood,” at the death of Ann Brown, and therefore could not be manumitted without contravening the provisions of the act of 1796. Any thing then that was said by the judges, in the discussion of the case of Hamilton vs. Craig, upon the question now before the court, was wholly gratuitous, mere “obiter dicta,” dehors the record,” and entitled to no consideration at the hands of this court.
    The case at bar, then, is untouched by any well considered adjudication in Maryland, and, upon principle, it is clearly for the appellees; for the authorities already cited shew, most certainly, if the same words were used in the gift of a chattel, as are employed in this clause in the gift of freedom, they would give an immediate vested right. Then, I would ask, by what rule is the principle which governs in the case of property to be rejected, when freedom is conferred by a similar clause; and that, too, when the rejection of the principle, and the substitution of its correlative, is to operate rigorously and unjustly. I answer, that such rule, by whatever tribunal established, however respectable and authoritative, can neither receive the sanction of reason or humanity.
    But if the court doubt upon the question here presented, they must decide for the appellees. See Isaac vs. West’s executors, 6 Rand. Rep. 652, where it was held, “ If the construction of a deed of emancipation be doubtful, resort may be had to the rule, that the deed is to be taken most stronSly against the grantor, and he construed ,. , .. P , ° . . according to the spirit oi the laws ot all civilized nations, which favor liberty.” I do not deem it necessary to say any thing about the construction of the statute of Maryland of 1796. The children, in this case, wereborn in Ten» nessee; the testator had the power, under the laws of Maryland, to manumit his slaves; and itais exclusively a question of policy with Tennessee alone, whether she will assent to their manumission.
    2d. But admit the right of freedom did not vest in the mother at the death of the testator Bond, still the defendants Hannah, Delia and Edward would be free so soon 33 the mother arrived at the age of twenty-five years, (which event took place before the commencement of the present suit,) upon the principle, that the increase of slaves belong not to the owner of the particular estate, but to the person having the general property. See 1 Hayw. 233: Cook, 381 and 113: 3 Hawks, 456.
    In this case, the right of the children, as privies in blood to the mother, are dependant upon and associated with the rights and condition of the mother, in whom is vested the general right of freedom, after the determination of a particular estate.
    3d. Should the court, however, be of opinion the law is as first contended for, and that a judgment accordingly cannot be pronounced upon the finding of the jury, that “Hannah, Delia and Edward will be respectively free when they arrive at the age of twenty-five years,” the court will reverse the judgment below, with directions to the circuit judge to charge the law in conformity with that opinion.
    4th. The objection, that two or more cannot join in an action founded upon a personal tort, does not apply in suits for freedom. Seel Chitty’s Plead. 51: Fitzher-bert’s N. B. 152: 1 Wash. Rep. 233 — where the court expressly say, two or more may join in the prosecution of a suit for freedom.
    
      5ih. If Hannah, Delia and Edward were not free un-M - r * « , . . . j til they were twenty-five years old, .as the circuit judge charged, still their being co-plaintiffs, and incompetent to sue, is not, in the present action, a ground of error. See 1 Chitty’s Plead. 55: 1 Co. Litt. 197, b: 3 East, 63: 13 East, 453. The suit may be dismissed as to them, and judgment pronounced for the other defendants.
   Catron, Ch. J.

delivered the opinion of the court.

Thomas Bond, a citizen of Maryland, in the year 1800 made his last will, by which he liberated several of his slaves, and amongst other devises and bequests were the following:

1st. I give to my son, Phil Bond, a negro man, Bishop, to serve him five years after my death, and at the expiration of said five years the said Bishop to be a free man.

3d. I give to my son, Edward Bond, one negro boy named Jim, aged fourteen years, to serve him until he is twenty five years, of age, and then at the expiration of the time to be a free man.

3d. I give to my son, Thomas Bond, a negro boy named Frederick, aged twelve years, to serve him until twenty five years of age, and then at the expiration of that time to be a free man. One negro boy named Abelard, aged one year, to serve him until he is twenty five years of age, and then at the expiration of that time to be a free man.

4th. My will is that my negro woman named Dinah, shall have her freedom at my death; my negro woman Suck, to have her freedom at the expiration of three years after my death; my negro woman Rachel, shall have her freedom at the expiration of five years after my death; negro Betty, which I have given unto my daughter Elizabeth Gibson, shall have her freedom at the expiration of four years after my death.

And further, my mind and will is, that all the negroes which I have hereinbefore given to my children, which are under the age of twenty five years, and also, all the young negroes which I may have in my possession at the time of my decease, shall have their freedom when they respectively arrive at the age of twenty five.

Thomas Bond died in Maryland, and the will was duly proved and authenticated. The clauses recited, emancipating the slaves of the testator, were made in accordance with the act of Maryland of 1796, ch. 67, sec. 13, by which it is provided, “That from and after the passage of this act, it shall and may be lav/ful for any person or persons, capable in law of making a valid will and testament,to grant freedom to, and effect the manumission of any slave or slaves belonging to such person or persons, by his, her or their last will and testament, and such manumission of any slave or slaves may be made to take effect at the death of the testator or testators, or at such Other periods as may be limited in such last will and testament.” The statute prohibits manumission to the prejudice of creditors, of slaves over forty five, and also of such as shall not be able to work and gain a sufficient maintenance and livelihood at the time the freedom given shall commence.

Clarissa, at the time of the testator’s death, was about tetl years of age, and claims her freedom by that clause of the will manumitting the young negroes. Before Clarissa was twenty five, she had three children, Hannah, Delia and Edward; after that age she had Edy and Martha. The mother and five children all sue jointly in this action.

The circuit court adjudged Clarissa free at twenty live, and that Martha and Edy, following the condition of the mother, were free, because born after she was free.

The court also adjudged, that the three children born before Clarissa was twenty five, followed the condition of the mother, and would be free at their respective ages of twenty five; neither of them at the time of the trial be-mg that old. To this part of the charge, and finding of the jury thereon, error is assigned lor the plamtins mer-ror; and also for the defendants in error, Hannah, Delia and Edward, who claim to have been born free.

This cause has been argued with an anxiety for the defendants in error, and with an ability on both sides, leaving the court nothing to wish, save something of information of the course of adjudication in Maryland, if any has been had there on the subject. With the lights before us, however, we have come to a conclusion satisfactory to the majority of the court.

The statute of Maryland is open to remark in explanation of the will. Young slaves incapable of supporting themselves could not be emancipated, if the freedom given was to commence during such incapacity. When making the will the testator was governed by this restriction in reference to the slave children.

2. The statute does not give directly any powers to the testator to control the increase of the females who were slaves at his death; yet he having uncontrolled power of their freedom or slavery, it is perhaps the most consistent construction of the act to say, he had the power to declare the condition of Clarissa’s children born before the freedom given commenced. As to this middle state affecting the three children born before the mother was twenty five, the legislature has not declared its will: and in giving a construction to the will made pursuant to the statute, the court must bear in mind, the claim is one involving human liberty, and that the testator’s intention must be favorably interpreted to this end. 4 Am. Dig. 535: 1 Washington’s Reports, 239: 5 Am. Digest, title “Slaves:” Cook’s Justinian, 32, 13, 14. The increase must follow the condition of the mother. If when born she was a slave, they are slaves; if free, they are free.

She was not a slave for life; this is not insisted on: but that until she attained the age of twenty five, she was a slave. So the circuit judge thought, and instructed the jury that the three children were slaves until the age of twenty five years, when they should be free. Of course, if this construction be the true one, we have in perpetuity, slaves for a term of years; the descendants'of Clarissa’s daughters must be in the same condition!

Let us run out the consequences of this construction. Suck was to have her freedom at the expiration of three years after the testator’s death; Rachel-, at the expiration of five years; Betty, at the expiration of two years.

At what ages these women were free does not appear. Suppose they had children before the time arrived? Should they be free at the same age the mother attained when she was free? This is in accordance to the decision of the circuit court: or shall they be free at the end of the mother’s term? Had she been a slave forever, their condition would have been the same. She being a slave for years their condition could not be worse. The child before born is part- of the mother, and its condition the same; the birth does not alter its rights. If the mother at the time of the birth be free, it is free. Justinian’s Institutes by Cooper, 13. In this respect, the rule governing slave property in this State, and the civil law, are alike. It is confidently believed that no such middle ground can be taken in this and similar cases. We find conflicting decisions on the subject. The case of Pleasants vs. Pleasants, (2 Call’s Reports, 320,) decided nothing to afford any aid. It only determined that the testator had the right to declare the condition of the children of his female slaves.

In the case of Maria vs. Surbaugh, (2 Randolph’s Rep. 228,) it is holden, that a female slave declared to be free at the age of thirty-one years, and having issue before she arrives at that age, the children are slaves for life. But we are told, the question, as to the civil state of the children born before the mother attained the age of thirty one, depends upon the true construction of the statute of 1753 of Virginia. Upon the policy of that State, growing; out of, and evidenced by this and other statutes, is the decision mainly grounded. It is a most strict construction, not to say a strained one, in prejudice of human liberty, and is in conflict with the opinions of Chancellor Wythe and Judge Roane, in the cause of Pleasants vs. Pleasants, 2 Call, 338.

In the case of Ned vs. Beal, in Kentucky, (2 Bibb, 298,) the supreme court held, that a female slave devised to be free in the year 1804, who had children after the testator’s death, and before the year 1804, was, a slave until 1804, and that the children were slaves for life. With the reasons for this decision we are not satisfied. In New Jersey, where a will contained the following clause, “I leave my two negro girls to be sold by my executors for the term of fifteen years, and-at the end of that term to be free,” it was held that the negroes ceased to be slaves from the time of the sale, and therefore a child born of one of them during the term, was free. 1 Cox, 36: 4 Am. Dig. 534.

Something in accordance to the principles of this determination, it was decided in Virginia, (subsequent to the case of Maria vs. Surbaugh,) in Isaac vs. West’s executor, (6 Rand. 652,) that if the construction of a deed of emancipation be doubtful, resort may be had to the rule, that the deed is to be taken most strongly against the grantor, and liberally construed in favor of liberty, a rule growing out of the spirit of the laws of all civilized nations which favor liberty; that a deed of emancipation by which the master manumits his slaves at his death, but directs that they shall serve him as long as he lives, and at his death go free from all persons, passes a present right to freedom, reserving a right in the grantor to their personal services during his life, as a condition of the emancipation. Therefore, a child born of one of the emancipated females in the interval between the execution of the deed and the death of the grantor, is free from its birth.

This adjudication proceeds upon the around of a vested right or freedom communicated to the lemale, and placing her on the foot of a person bound to service for a term of years, who has a general right to freedom, but there is an exception out of it by contract. So of the New Jersey decision.

Had Clarissa a vested right to freedom on the death of Thomas Bond? As to Suck, Rachel and Betty, and as to the man Bishop, devised for five years to Phil Bond, we think there can be no doubt they were intended by the testator to be free persons held, to service for a term of years: nor can we bring our minds to believe the testator meant differently, than if he had said, I will that my girl' Clarissa be free, but that she serve my children for the term of fifteen years; being then twenty five years of age, she will be able to support herself in compliance with the statute of 1796, and will have been raised to industry, and in moral habits by my children, so that she may the better enjoy her freedom. Furthermore, it is right she should pay for her raising, which, by the time she is twenty-five, she will have done. With this explanation, no one will .deny Clarissa would have taken by the will, a present right to freedom at the testator’s death, encumbered with a condition to serve fifteen years. In .reference to Rachel, Suck, Betty and Bishop, the testator was sufficiently explicit to. the above effect, and we think he manifestly meant the same thing when emancipating his young negroes. Suppose Suck twenty-two, he knew her age and he said she should serve until she was twenty five and then go free? How would this have differed from the words used; my woman, Suck, to have her freedom at the expiration of three years after my death? That Clarissa rested under most of the disabilities pertaining to a-state of slavery is true; but that she took a vested and undoubted right to freedom by Thos. Bond’s will is equally true.

The children bom of Clarissa in the State of Termes-See, canie into existente impressed with the rights our laws confer. They were not the slaves for life of Wilham Harris. They could only be his slaves until the .termination of twenty-five years from the birth of their mother. Her state and condition fixed that of her increase, during the particular estate, and also after its termination. With us the remainder man takes the increase of slaves, born during the term. Timms vs. Potter, 1 Haywood, 234: 2 Yerger, 586. If the termer has no further title, and there be no one to take in remainder, slavery ceases of course. Such we take to be the condition of the three.children born of Clarissa before she was twenty-five.

But as it is insisted that the decisions in Maryland will be conclusive of this cause contrary to our present impressions, we will hold it up until the next term,, so that they may be had, or rather such of them as we have not seen and examined.

The cause was argued and the above opinion, prepared at the March term, 1833. The case was. again argued at this term, after which the' Chief Justice delivered the following opinion of the court.

This cause was, at the last term, holden up under’ advisement, to obtain and look into Maryland authorities. The cases of Hamilton vs. Craig, and Chew vs. Gary, have been produced to us, 6 Har. and Johnson’s Reports, 16 and 526. They established "the position, that if a negro woman slave be given to A, for his life, and at his death the slave to be free, the increase born of such woman during the life estate, are slaves for life, and the property of him to whom the use is limited. In Maryland, the issue is considered not an accessary, but as a part of the use, like that of other female animals. 1 Har. and M’Hen. 160 and 352: 1 Har. and John. 526: 1 Hayw. Rep. 335. Suppose a brood mare be hired for five years, the foals belong to him who hires, as a part of the use of the dam. 2 Bl. Com. 290. 1 Hayw. 335. The slave in Maryland, in this respect, is placed ón no higher or different ground. Had the defendant Harris continued in Maryland, and the three children born of Clarissa, before she attained twenty-five years of age, been born there, they would have been his property, just as much as the produce of the labor of Clarissa. But Hannah, Delia and Edward were born in Tennessee, and the defendant’s right to properly in them vested subject to our laws; by which, the first taker has the same interest to the increase he has to the mother. Timms vs. Potter, 1 Hayw. Rep. 234: 2 Yerg. 586: Cook, 113, 381. Had Clarissa been given to Harris by will .in Tén-nessee^until she arrivedtat the age of twenty-five, and then over in remainder, Harris would 'have been entitled to her services for the term, and to the services of her children for the term; but then the mother and also the children would have gone over to the remainder man. When the title of Harris to Clarissa ceased, his title, by outlaw, to the three children ceased. That he has no right to their services is manifest.

North Carolina adopted the rule of nature, pertaining to human creatures, in declaring that the condition of the mother should be that of the child. The latv does not separate the title: they go to the remainderman together; and if there be no remainder man to take the mother, the child goes with her. By Thomas Bond’s will, there is no one to take in remainder. His executors were the first takers, until the young slaves respectively attained twenty-five years of age, and then they were to go free. Harris, as distributee, took the title the executors had. As first taker, his title ended when Clarissa was twenty-five. The executors have no'title over, nor has anyone.

The title of the mother and children standing together, they may sue together for their freedom. 1 Washington’s Rep. 233, 239. There is nothing in the objection of misjoinder.

As to Hannah, Deba and Edward, the judgment will be reversed, and the cause remanded tor another trial as to Clarissa and the other children, the judgment will be affirmed, and they go free.

Green, J. dissented.  