
    John W. Monk, Administrator of Judy, v. Elizabeth M. Jenkins, Executrix of John Cato Fields and John S. Fields.
    When a statute authorizes a proceeding not before allowed by law, and prescribes the mode in which it shall be done, the mode pointed out must be strictly pursued or the proceeding will be void: but when a proceeding is permitted by the general-law, and a statute directs a particular form in which, it shall thereafter be conducted, it will depend on the terms of the statute whether it is merely directory, subjecting the parties to some disability if it be not complied with, or shall render the proceeding void. [*12]
    Before the Act of 1800, emancipation was permitted in anyway in which the master might signify his intention. — That statute does not render any act of emancipation which does not conform to its provisions void, but merely subjects the slave so illegally emancipated to seizure; and until seizure, the slave emancipated will be regarded as free. [*13]
    
      The delivery of a deed of emancipation, after long lapse of time, a.nd the enjoyment of rights under it may be presumed; but the only delivery contemplated by the Act of 1800, is the lodging it with the clerk to be recorded, and it is the duty of the master to lodge it. [*14]
    Lodging a deed of emancipation with the clerk, is a sufficient recording; and with respect to any person seizing the slave, if the deed was in the office at the time of seizure, the presumption would be that it was lodged in due time. [*14]
    Colleton, January, 1834. — Before Chancellor Johnston.
    This bill was filed by the plaintiff, as the administrator of Judy, a woman of color, formerly the slave of John Cato Fields, deceased. It states that the said John Cato Fields, being the lawful owner of Judy, on the 14th April, 1806, executed a deed of manumission, by which Judy was emancipated and set free. A copy of the deed, with the examination before a justice, and the certificate prescribed by the Act of Assembly, were filed as exhibits to the bill. That John Cato Fields, died in 1811, leaving a will, in which he bequeathed certain slaves and other property to Judy, *and appointed one Hughes her trustee, and that after J the death of the testator, his executors put Judy in the possession of the legacy. Shortly after the death of Fields, both Judy and Hughes, her trustee, died, and the defendant, Elizabeth M. Jenkins, who is now the executrix, and John S. Fields, who intermarried with the residuary legatee, are now in possession of the property, and refuse to deliver it up. The bill prays an account for rents and profits, and the delivery of the property. The defendants pleaded: 1. That John Cato Fields never executed such deed as is required by the Act of 1800, prescribing the form of emancipation. 2. That no such deed has been recorded within the time prescribed by the Act.
    On the hearing of the case, the Clerk of the Court was examined as a witness, and testified that he found the deed among the papers of the office, labelled, and an endorsement in the handwriting of a former clerk, specifying its contents, but not indicating the time it was delivered to him. There was no evidence given that the deed was delivered within the six months prescribed by law.
    The Chancellor dismissed the bill for want of jurisdiction, inasmuch as it made a proper ease for relief at law; but he overruled both pleas. The defendants appealed from the decision of the Chancellor on the pleas, and make the further ground: That the plaintiffs has no civil status, and cannot therefore maintain his bill.
    
      Memminger, for the appellants,
    insisted that, by the law of this State, (P. L. 163,) every person of color is presumed to be a slave, and the onus of proving- freedom is thrown on the plaintiff, and this can only be done by showing a strict compliance with the Act of 1800, (2 Faust. 355,) prescribing the form of emancipation. One requisite of the Act is, that it must be by deed, and to constitute a deed there must be a delivery. Shep. Touch. 51. Delivery to the slave would not be sufficient, for there must be a party capable of being contracted with, and accepting the deed. Shep. Touch. 55 ; Co. Lit. 35, b. And a slave is not a person 'in law, but a mere chattel. The Act requires a copy of the deed to be delivered to the emancipated slave, and this may be regarded as equivalent to delivery at common law; but there is no evidence that a copy was so delivered. Delivery of some sort is essentially requisite to perfect the act of emancipation. The deed must be *recorded within a pre- r#1 -, scribed time; but there is no probate on the deed, without which *-' it could not be recorded, and if the lodgment with the clerk be regarded as a sufficient recording, nevertheless, it should appear that the lodging was within the prescribed time. Cited 2 Con. Rep. 12; 1 Bail. 421; 2 Hen. & Munf. 461.
    
      JR. B. Smith, contra.
    The deed is now twenty-eight years old. J. C. F. lived eleven years after its execution, and so far from calling it in question, he recognized it in his will. The person for whose benefit it was made, in her life-time exercised rights under it. She is now dead, and her children and grandchildren are now interested. Under these circumstances, the Court will presume a delivery of the deed, if that be necessary — that it was legally recorded, or delivered to the clerk, within the prescribed time. — -in short, everything which may be necessary to give it effect. The Act requires an attested copy to be furnished to the slave, and i-t would seem, by implication, to be the duty of the clerk to retain the original, and recording will be presumed. 3 Harris & M’H. 102. Delivering a deed to the recording officer is regarded as recording. Marbury v. Madison, 1 Cranch, 161; Kirby, 72; 1 Marshall, 306. Under the Act, it is made the duty of J. C. F. to have the deed recorded, and a copy delivered. He, or those claiming under him, cannot be permitted to take advantage of his wrongful neglect of duty, in order to avoid his own deed. If the heir prevent the due execution of a will, equity will relieve. So also if the executor prevent the execution. There are numerous cases in which equity will relieve against neglect to conform to a statute, especially when there is no blame in the party to be benefited. 2 Bast. 399 ; 11 East, 630; 1 D. & E. 734; 6 Tes. 743 ; 11 Tes. 623, 645.
    
      Grimke, in reply,
    argued that emancipation is now an act of sovereignty, which the Legislature have taken into their own hands : it fixes the status of the person emancipated, and gives him a new relation to the community. This is then a question of public policy, and not one merely of meum and tuum; and it behooves the Court to see that the forms o.f law have been complied with, otherwise persons may exercise civil privileges who are not entitled to them. The presumption of law is, that Judy was a slave. Act of Assembly, 1740 ; 2 Bibb. 238 ; 3 Am. Dig. 484. And to rebut this presumption, it must be shown on her part that the Act of 1800, which prescribes the forms of emancipation, has been ^strictly followed. The Act requires it to be done by deed, and without delivery there can-be no deed. It may not be necessary L that the delivery should be to Judy. Perhaps the magistrate might accept it. But no delivery is proved. As to the recording, whose duty was it to have the deed recorded ? By the delivery, the master parts with the possession of the deed, and it cannot, therefore, be his duty to have a paper recorded which is not in his possession. Those who are interested are bound to have it recorded. The attested copy is to serve between the master and slave; the recording is a matter between the slave and the public, and is essential to the validity of the act. Is the delivery to the clerk tantamount to recording ? It may be so, if the deed be ready for registration, and be delivered in proper time; but to authorize recording, there must have been a probate, (1 Brev. Dig. 316,) which there was not. If lodging it with the clerk be recording, it should be shown to have been done within the legal time; for if it was delivered to him within the time, he was bound to enter it, otherwise he was not. The presumption is against the slave, and applies to every doubtful fact. Cited 1 Pennington, 10; 3 Am. Dig. 477-8, 485; 19 John. Rep. 53.
   Harper, J.

The appeal is only from so much of the decision of the .Chancellor as overrules the pleas of the defendant. In this respect we agree with the Chancellor. He reports that the woman, Judy, had the uninterrupted enjoyment of freedom from the date of the deed to her death, and was recognized as a free person by the will of her former owner, John Cato Fields. Under these circumstances, I am of opinion that neither John Cato Fields, nor any person claiming as a volunteer under him, could dispute the validity of the emancipation, even if there had been no deed.

*13] When a statute is passed authorizing a proceeding, which was not allowed by the general law before, and directing a mode in which the act shall be done, here the mode pointed out must be strictly pursued. It is a condition on which alone a party can entitle himself to the benefit of the statute, that its directions shall be strictly complied with; otherwise the proceeding will be void. But when a proceeding is permitted by the general law, and an *Act of the Legislature directs a particular form and manner in which it shall be conducted, then it will depend on the terms of the Act itself, whether it shall be considered merely diréetory, subjecting the parties to some disability if it be not complied with, or whether it shall render the proceeding void. If no emancipation were permitted, (as the law is at present,) and an Act of the Legislature should permit owners of slaves to emancipate them in some prescribed form, if the form were not complied with, the Act would be void. But the several Acts of the British Parliament directing that public officers shall not enter on the duties of their office until they shall have taken the oaths to government, have been construed not to render their official acts void if they will take upon themselves to act, but to render the officer personally responsible for a violation of law. . There are a great number of instances of the same sort.

It is to be recollected that before the Act of 1800, which is now in question, emancipation was permitted in any manner by which the master might signify his intention to emancipate. The Act prescribes that after its passage “it shall not be lawful for any person or persons to emancipate his, her or their slave or slaves, except according to the forms and regulations hereinafter prescribed,” &c. If the Act had stopped here there might be ground to contend that the act of emancipation would be void, if not done in the manner prescribed. But the Act itself goes on to say what the consequences shall be if the forms and regulations directed by it are not pursued. A subsequent clause provides, that “in case any slave shall hereafter be emancipated or set free, otherwise than according to this Act, it shall and may be lawful for any person whatsoever to seize and convert to his or her own use, and to keep as his or her own property, the said slave, so illegally emancipated or set free.” Here is a plain recognition by the Act itself, that slaves may be emancipated or set free, otherwise than according to its directions. On this view was founded the decision of the Court, in Johnson v. Linam, 2 Bail. 13Y. Where the master had emancipated the slave in an irregular manner, it was held that, however the slave might be liable to seizure under the terms of the Act, the master’s properety was divested, so that he could not maintain an action to recover the slave. There can be no slave without a master, and it follows, that after such irregular emancipation, until seizure is actually made, the emancipated slave must stand on the *footing of .-.¡., . any other free negro. In the case before us, the woman was never >- seized, and being now dead, never can be, Her legal representative has the same standing in Court that the representative of any other free negro would have. It is true that the presumption of our law is against a negro’s freedom, and that this is a question which concerns the public. But the security of the public was provided for by subjecting the irregularly emancipated slave to seizure. As between the slave and the master, or those claiming under him, it is merely a question of individual right.

The view which I have taken might, for the purposes of the present case, dispense with the necessity of considering the topics which were urged in argument with respect to the validity of the deed itself. I shall, however, advert to them very briefly.

First, as to the delivery. I concur with the Chancellor1, that if it were necessary to rest upon presumption, there is enough to presume a delivery of the deed. There is nothing in the Act to render a trustee or guardian necessary. Before the Act, the very fact of executing -the deed would have rendered the slave capable to accept it. But from the terms of the whole Act, I am satisfied that the only delivery contemplated was the lodging of the deed with the clerk to be recorded. It is not to be supposed that the maker of the deed, against whom it is evidence, shall be the person to retain it. The emancipated slave is not to have it, for he is to be furnished with a copy attested by the clerk, and it is made the duty of the master, under a penalty, to deliver to him such copy, and consequently, to deliver the deed to the clerk, who is to furnish and attest such copy.

It would be useless to inquire, whether the provision of the Act, that the deed shall be void unless recorded within six months, was intended merely for the benefit of creditors and purchasers, or applies to the master himself; as from the view I have taken, the master is bound by his act of emancipation, independently of the deed.

Then supposing the deed to have been lodged within the time prescribed by law, I am of opinion that this was a sufficient recording within the meaning of the Act. The clerk is a public officer, directed to record such deeds when lodged with him, and his neglect or omission would not be permitted to work a prejudice to *third persons who were in no default. But, as was said in argument, recording does not merely mean transcribing in a book. The rolls of Courts are records, though not transcribed. The original furnishes at least as authentic evidence as a copy, and if that be lodged in the office, there to remain as a public document for the information of all who may inquire, this is a sufficient recording, however proper and convenient it may be, that the clerk should make a transcript in a book kept for that purpose.

Then the deed being found in the clerk’s office, without any evidence of the time when it was lodged, ave we to presume it was lodged within the time prescribed by law, or the contrary ? Without entering to reasoning on the subject, I incline to the opinion that with respect to any person who should seize the slave, provided it appeared that the deed was actually in the office at the time the seizure was made, the presumption would be, that it was lodged in due time. With respect to creditors and purchasers, I give no opinion.

The motion to reverse the Chancellor’s decision, is refused.

Johnson and O’Neall, Js., concurred.  