
    Gelston against Russel and others.
    NEW YORK,
    October, 1814.
    in Vi* revolutionary war, left hb ympprty a nú family in thb state,and we?rt to Canarfa-) where he refilled until hi« death, abnwi the 180 L
    
    Among fe property of left with lib family, was » female who had a s^n boro, named P.; and J.,the eldest sonof.&.<, bad lbe agement oi to father’s estate, away, Ib tvs? der an esecut!™goo;fiSof.:w a5»” tide p^ic^uftion! ^Iaferthe toot^ssesaon claimed’ his siavé^it wat following* the ”™dltl™0ti,c^ ofifand^wTtinued his projnrty, (Zj. not having been attainted,) and on his death, passed to his executors, or administrators, ¿6 that J.8 Ms eon, had no property in him, which could be sold under an execution.
    THIS was an action of assumpsit, tried before the late chief justice, at the Columbia circuit, in October, 1813,
    The plaintiff demanded of the defendants three hhndred dot Zars, being the amount of the wages of Peter Latham, a black man, as a seaman on board of the vessel of the defendants, and who was the slave of the plaintiff
    It was proved, that in 1798 Peter lived with the plaintiff. The sheriff having an execution again James Latham, sold all his right and title to Peter, at auction, and the plaintiff became the purchaser under the sheriff’s sale. Peter lived with him some time before and some time after the sale. The father of
    
      James Latham owned a female slave, the mother of Peter, who ’ was born in the family, as a slave, during the revolutionary war; and before Peter was born, the father of James Latham went Into Canada, leaving all his property here with his wife and ehildren; and he died in Canada about twelve years ago, and subsequent to the sale of Peter to the plaintiff One of his sons, James Latham, took the management of his father’s estate, after he went to Canada, and has ever since acted as the owner of it. There was no other proof of the property of the plaintiff In Peter.
    The Chief Justice asked the plaintiff’s counsel, if he expected to prove any actual privity between the plaintiff and defendants, as to the services of Peter, by which he recognised him as Che slave of the plaintiff; and was answered, that the plaintiff would prove that after the services were performed by Peter, and before the money due for his wages was paid over, he gave notice to the defendants that he claimed Peter as his slave, and forbade the defendants paying the money to him.
    His honour, thereupon, directed the plaintiff to be nonsuited, for want of sufficient evidence of his being the slave of the plaintiff.
    A motion was made to set aside the nonsuit, and for a new trial.
    
      James Strong, for the plaintiff.
    By the law of this state, slaves áre regarded as goods and chattels. Property in a slave may be acquired by a bona fide purchase, without deed. A written transfer is not requisite. It appears that Peter was in the possession of the plaintiff; that he bought him of the sheriff who sold him as the property of James Latham. The plaintiff was a bonajide purchaser; and such a purchaser at a sheriff’s sale may hold the property purchased against all the world, unless it was stolen.
    
    The plaintiff proved that Peter was born a slave ; that he purchased him at a sheriff’s sale ; that he was in his possession, which amounts, at least, to prima facie evidence of property, and is sufficient against the defendants, until they show that Peter was a freeman.
    The proof was sufficient to be left to the jury as evidence of title.
    
      E. Williams, contra.
    The only question is, whether the plaintiff was the owner of this person or slave, so as to entitle him to claim the compensation for his services. Peter first lived with the plaintiff, confessedly, not as a slave. The sheriff then sold all the right and title of James Latham to this man, and the plaintiff became the purchaser. But what evidence is there that Peter ever was the property of James Latham ? If he ever was a slave, he belonged to James Latham's father, who died in Canada, subsequent to the sheriff’s sale. Janies Latham was not the executor or administrator of his father’s estate; and how does it appear that he ever acquired any property in the slave ? The circumstance that his father abandoned his property, and went to Canada, might, perhaps, be regarded as a virtual manumission of the mother of Peter; but James 
      
      Latham could have no claim to Mm, except as an executor or administrator of his father.
    
      
      
         Sable v. Hitchcock, 2 Johns. Cases, 79. 85. 87. Wal. den v. Payne, 2 Wash. Rep. 7. dan v. Payne, 2 Wash. Rep. 7
    
    
      
       1 Dallas, 169.
      
    
    
      
      
         Wilbraham v. Snow 2 Saund. 47.
    
   Yates, J.

delivered the opinion of the court. The question in this case is, whether the evidence is sufficient to establish the plaintiff’s property in the slave.

The mother of Peter was the slave of the father of James Latham. By the statute, (sess. 11. c. 40. s. 2.) he followed, from his birth, the state and condition of his mother; and, consequently, he was the slave of Latham, the father of James $ unless, after going to Canada during the revolution, the master has been attainted of adhering to the enemies of the country, which would operate as a lawful manumission of the slave. (Laws of New-Yorlc, sess. 9. c. 58. s. 29.) But such attainder and conviction, if any, has not been shown. In 1798, the time when Peter was sold by the deputy sheriff it appears Latham, the father of James, was living, and resided in Canada ; and he then continued to be the owner. The abandonment of his family and property could not devest him of his right to the slave; and the mere possession could not create sueh an interest in James Latham, his son, as to subject the slave to be seized and sold for the payment of his debts. The plaintiff ticlston, having only purchased the right and title of James Latham from the deputy sheriff, he cannot, now, under that sale, establish his claim to him, as his slave, who, if not a freeman altogether, must be considered as part of the estate of Latham, the owner of the slave’s mother, and subject to the disposition and control of his executors and administrators, in the same manner as the other personal property of the deceased, unless otherwise directed by will. The plaintiff having no claim to the services of Peter, the nonsuit was properly granted by the judge; and the motion to set it aside must be denied.

Motion denied.  