
    GENERAL COURT,
    MAY TERM, 1790.
    Thomas Attaway Reeder against John Cartwright.
    THIS was an appeal from Saint Mary’s County Court. By the record returned to this Court, it appears to be an fiction of replevin, brought in the County Court, by the appellant against the appellee, for several negro slaves. The pleas were non cepit, and property in the defendant. Verdiet for the defendant, and judgment for a return.
    By a bill of exceptions taken at the trial of the cause in the County Court, it appears:
    The plaintiff, to maintain the issues on his part, produced to the Court, and read in evidence to the Jury, the will of Thomas Reeder, sen. in the words following : “ I leave to my son Thomas Attaway Reeder, all that tract of land called Great St. Thomas, containing 300 acres, more or less, for the use of my daughter Drayden Reeder, or her issue, to be applied to either use, as my said son thinks proper, during her natural life; and, after her decease, to the issue of her body, lawfully begotten, for ever; and for want of such issue, to my daughter Bruce’s children. I also leave to my said son Thomas Attaway Reeder the three negroes, now with my daughter Drayden, named Sarah, Peg and Nell, then to be applied to the use as aforesaid.”
    It was admitted by the defendant, that negroes Ned, Joe and Jude, for the recovery of whom this suit was brought, are the issue of Peg, one of the negroes devised to Thomas Attaway Reeder, by the will of Thomas Reeder, sen. to be applied to the use expressed in the said will.
    It was admitted by the plaintiff, that after the decease of Thomas Reeder, sen. he, the plaintiff, suffered the said negroes to remain in the possession of Thomas Reeder, of John and Drayden, his wife, and their five children, who were at the time of such possession living with their parents; where the said negroes were at the time of the death of the said Thomas Reeder, sen. until the time of commencing the suit.
    The defendant’s counsel prayed the direction of the Court to the Jury, that Thomas Attaway Reeder was a trustee. under the will, of negroes Sarah, Peg and Nell, to the use described in the said will; and having left those negroes, after the decease of his father, in the possession of cestui que 
      trusts, (his sister Drayden and her husband,) the trust he-came executed, and was liable for her husband’s debts; and that, therefore, the plaintiff was not entitled to recover in the present suit.
    To this the plaintiff objected, alleging that the circumstance of Thomas Attaway Reeder having suffered the said negroes to remain in the possession of Thomas Reeder, of John and Drayden, his wife, and their children, who were at such time of possession, living with the said Thomas and Drayden, after the decease of Thomas Reeder, sen. without other proof, was not alone sufficient to shew that Thomas Attaway Reeder had executed the trust reposed in him by the will, and had applied the said negroes to the use of Drayden Reeder; and evidence also being offered to prove that Thomas Attaway Reeder, soon after his father’s death, had forbidden any person to purchase the said negroes from Thomas Reeder, of John, (husband of Drayden Reeder,) by public advertisement. But the Court were of opinion, that the direction, as prayed for, ought to be given, and did accordingly give such direction to the Jury. To which opinion and direction the plaintiff’s counsel excepted.
    The General Court affirmed the judgment of the County Court.
    The appellant appealed to the Court of Appeals-
    
      In the Court of Appeals.
    
    Cooke, for the appellant.
    A use cannot be raised but out of a real estate. Co. Litt. 272. 5 Com. Dig. 618. 5 Bac. Abr. 368. Win. Jones, 127. And if it cannot be raised it cannot be executed; men it remains in Mr. Reeder, and is only a trust for the benefit of his sister.
    But uses and trusts at common law were what trusts now are; they were interests that existed in idea or equity only, and were not assets in the hands of the heir, nor subject to the payment of debts; nor were they such an interest of which a woman could be endowed. 1 Co. 121. 1 Ch. Cas. 14, 128. Gilb. Uses, 37. 73. Suppose the case of a mortgage; the equity of redemption is an equitable interest only, and is not liable to execution at law. 2 Atk. 294. 308. 10 Mod. 103.
    The gentlemen will contend that here was a separate use for the benefit of the wife of Reeder; but if it was so, it would not subject the property to the payment of the husband’s debts. 2 P. Wins. 316. 1 Atk. 192. 3 Atk. 399.
    I contend, however, that this was no use for the separate benefit of the wife. It was for the support of her and her children expressly. The children lived with the mother, and the negroes were as much the property, and as much in the possession of the children, as the mother; and it will not be contended, that the children’s property was liable to pay the debts of the father. If the negroes can be taken as the property of the mother, then the children are beggars, and the intention of the testator is defeated. This is not a use executed, but only a trust, and the legal property is in Mr. Reeder.
    
    It was argued in the General Court, that the property was vested in Drayden, by being left in her possession; and that these negroes were the issue of the original stock, and are the usufruct, or profits, which became her own, and were liable to the execution of the creditor for the debt of her husband. But no case was cited to support this position. ■ It .was indeed likened to the case of an executor, who, it has been held, under our testamentary laws, was only obliged to make up the original stock, or inventory, and was not accountable for the increase of negroes.
    But this depended on the positive law of the state, which, making the executor answerable for the loss in case -of death, it >vas but reasonable he should have the issue in case of births. That doctrine will not hold at common law, on the principles of which this question is to be decided.
    
      Suppose I hire a slave who has issue while in my service, will not the issue belong to me? 1 Domat, 196. Suppose any person takes my negro, will I not recover as well the original stock as the increase, and damages also for the prolita t/ldle she was detained.
    But this argument does not apply; though I believe it was the ground on which the Court gave their judgment; for it is grounded on a concession. I do not admit that the property was put into Mrs. Seeder’s hands, by her brother, for her separate use. There is no evidence to shew it.
    
      Key and Martin (Attorney-General) were counsel for the appellee.
   The Court of Appeals, at Jane term, 1793, reversed the judgment of the General Court.  