
    Elizabeth Cline v. Daniel Caldwell.
    
      Tried before Mr. Justice O’Neall (silting for Mr. Justice Richardson ) who made the following report:
    
    “This was an action of trover for a negro man named John.
    The plaintiff was a free mulatto woman, descended from a white mother; she purchased John, (who her husband) from Cato Gallman, a free negro. John, it appeared, belonged originally to Jacob Clay, who sold him in 1822, to George Setzler, for $850 : John advanced $300 of his price, and Setzler paid the balance, $350. The understanding was, that he was to i)e free when the balance was paid. He sold him to * reaerick Kmard for $200, who said on his examination, that he bought without any understanding that J°hn was to be free. He sold to John Glymp, for the same sum, who said, that if John stayed with him until he worked out the $200, he was to be free; if they he was to get another man to buy him. He kept him near two years, and sold him back to Frederick Kinard : there was about $100, balance, due on his price. Mr. Kinard, however, stated that gave $160 for him. In 1824 or 1825, he sold him George Súber and Westley Dawkins, each a part of his price. Westley Dawkins sold his half of the negro John, to Solomon Súber, who took into possession, and.in May, 1827, sold his half to Caldwell, for $250. On the 5th of September, 1827, Joseph Caldwell and George Súber, conveyed, by bill of sale, in consideration of, I think, $500, the slave John, to Cato Gallman. The witness, Mr. Glymph, said, he saw no money paid, but the sel-jerg the purchaser and the slave, were all present— that he made the settlement and calculations between the balance due Caldwell, on account of John’s price, was $60, to pay which, John was to remain and work until the next spring, which he did. About the spring of 1828, he left Mr. Caldwell s possession, and Newberry district, and is next found in Abbeville dis-where, according to the proof, he was controlled and governed by Cato Gallman, and was his ae. knowledged slave, until he sold to the plaintiff, who had possessions in Abbeville and also in Georgia, to which place last she and John removed.
    
      a deed 0r a ^ave, ^absolute ^ w«hfae°S’ % '0jíiojn8^ “wigatoly biSs-Uncmani . . tS°piace,utho
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    to^ciaim^anegro mustcSe’h|ii as a siavo winch contrary to law ; wikh tu™s‘md E>»b!!™<íbíí!v‘:’ waids claim Mm ?ed'onVacconüt fiíi üon-
    “On the 10th of March, 1828, Joseph Caldwell conveyed his interest, (a moiety) in John, to his brother Samuel, in consideration of natural love, good will and affection. Samuel is dead: his widow administered, appointed the defendant her attorney, who went to Georgia, and with the assistance of the witness Summers, and another man named Allen, seized and brought off the slave John. In February, 1828, xt appeared, from the testimony of Mr. Cromer, that Samuel Caldwell knew of his brother’s conveyance to Cato Gallman of the slave John, andón hearing Súber offer Cato $500 for him, said he thought the price a fair one. Under this claim, Daniel Caldwell seized John while he lived in Abbeville, but on seeing the deed to Cato, and being threatened with a warrant, gave him up. Mr. Dunlap offered to show, that the consideration of the deed from Joseph Caldwell to Samuel Caldwell, was not only natural love, good' will and affection, but also that Samuel was to maintain and take care of Joseph during life. I overruled the testimony. Garrett v. Stewart, 1 M’C. 514. At the close of the plaintiff’s case, a motion was made for a nonsuit, on the grounds, 1st, that no legal title was proved in Elizabeth Cline ; 2nd, that neither Elizabeth Cline nor Cato Gallman (being free negroes) could own slaves. I refused the motion. The first ground was untenable, according to the opinion of the Court of .Appeals in this case. As to the other, there was, I thought, no doubt upon it. As free persons, they could necessarily, acquire and own properly, and there was no restriction upon this right as to their acquisition of slaves.
    “I submitted to the jury, the following questions arising out of the defendant’s defence, upon which, I thought, the case depended. 1st, is the bill of sale from Joseph Caldwell to Cato Gallman void ? 2nd, Was the negro John, at any time at large, and manumitted ? 3rd, did the defendant ever make any seizure of him as a slave manumitted contraryoto the Act of 1820 ? Upon each of these questions, I was with the plaintiff, and so expressed my opinion to the jury.
    “1st. I said to the jury, that the deed from Joseph Caldwell to Cato Gallman, was good as against the grantor, and all those claiming as volunteers under him, even if it had been intended as an evasion of the Act of 1820. I compared it, in this respect, to a deed executed for the purpose of defrauding creditors, which would be good as between the parties. So too in the case before us, there was nothing to invalidate ^16 deed as between Joseph Caldwell and Cato Gall man. If it had been a gift of the slave, by the former to the latter, it would have been binding upon die grantor: and for all the purposes of the question now made, it may be regarded as a gift from Joseph Caldwell. The supposed secret trust is all, when regarded as a gift, which it would be pretended, could avoid it. What is the difference between the secret trust to let a slave go free, and to hold the legal title to the property of a debtor for his use ? I cannot discover any : both are frauds against the law; hut neither of them can enable either o£ the parties to he relieved from the deed. If Cato, in violation of the trust to let John go free, had held him as his slave, Caldwell, and those claiming under him by a subsequent voluntary title, could never have recovered the slave. In the case before'us, the claim is not for John’s freedom; he is claimed as the slave of the plaintiff, by regular conveyances of the legal title. There is no fraud in this point of view, even against the Act of 1820; and there is secretly none which can avoid the conveyances in favor of Caldwell’s subsequent donee. For if the fraud consists in the secret trust against the Act of 1820, Caldwell, as well as Cato Gallman, was a party to it; as a parliceps crim-inis, Caldwell cannot reap any advantage from it. The defendant, his principal, and the intestate, are all in the place of Caldwell, and take no other or better title than he had himself, after he had conveyed to Cato Gallman. He had none, and they of course have none.
    “ The Act of 1820, does not declare a deed absolute on its face, but intended as a covert emancipation void: it simply enacts, that emancipation shall not take place, but by Act of the Legislature. The execution of the deed or bill of sale of John, conveys to the grantee the right of property: there is, in such a transfer, although made with a view to future emancipation, no violation of the Act of 1820. Until actually emancipated and set free, the right of property was in Cato Gillman’s alienee, the plaintiff.
    
      “2nd. This necessarily led us to consider the 2nd question; for the correct decision of which, it would be necessary to enquire, what would constitute such an emancipation or manumission of a slave, as would be a violation of the Act of 1820. The case of Young v. Sylvester, 1 Bail. 632, decides, that under the Act of 1800, (with which that of 1820 is to be construed in pari materia) “ to emancipate and set free, certainly means parting with the possession of the slaves, and permitting them to go at large and act for themselves.” That case is sustained by the case of Linam v. Johnson, 2 Bail. 137. The meaning is thus fixed ; and unless the slave has been permitted to go at large, as a free man, and without, the controul of an owner, the Act has not been violated. In the ease of Young v, Sylvester, it was held that a bequest of freedom, until assented to by the executors, in permitting the slaves to go at large, would not authorize a capture. In the case before us, there may have been an inchoate intention to set John free: indeed he may be virtually a free man, when the slave of his wife. But unless he was allowed to he at large without an owner, he could not he legally captured. According to the proof in (this case, he was continually under the controul of an ' owner, who was known to most of the witnesses : generally, he lived with his owner, and there was as much an actual possession of him as ever does exist between master and slave. I therefore thought that he had not been emancipated and set free, contrary to the Act of 1820.
    “3rd. But if John had even been emancipated contrary to law, I held, that to entitle the defendant to claim him as his slave, it was necessary he should have seized him as a slave emancipated and set free contrary to law. The proof was however clear, that the defendant seized under a title from Joseph Caldwell, which now turned out to he of no legal effect : lie could not therefore be allowed to turn round and claim him as a slave, captured on account of being emancipated and set free contrary to law.
    “The seizure in this instance was in another state. Georgia. It could have been no violation of our law, it his owner, the plaintiff, had there permitted him. to go at large ; and no seizure, under such circumstan-ees, could confer any right on the defendant.
    “It might have been (for aught we know) perfectly legal in Georgia, to permit John to be a free man; and that his capture there would be illegal. If the Georgia law authorized the capture, it was for the defendant to show it: not having done so, the presumption was very properly against him, that there was no such law.”
    The j ury found for the plaintiff, and the defendant appealed on the grounds taken below, and because the verdict was contrary to the evidence.
    Dunlap & J. J. Caldwell, for the motion.
    Caldwell & Fair, contra.
   Per Curiam.

We concur with the presiding Judge in his views of the law, and the verdict of the jury must be regarded as conclusive of the facts.  