
    Stewart vs. Miller & Moore.
    
      Jurisdiction — Special—-judgment when good. In the exercise of a special jurisdiction, if the proceeding is in the nature of a suit, and the order taken by the court is in the form of a judgment, it will be maintained, though the entry of the adjudication do not show that all the steps required by the act of assembly were taken previously to the judgment.
    Slaves. Emancipation — Construction of'act 0/I8OI, c. £7. The proceeding, under the act of!801, c. £7, to emancipate a slave is in the nature of a suit*, and if the order of emancipation made of record by the court, recite the matters of fact which constitute the reason of their adjudging the slave to be free, that will be a sufficient emancipation, though the order do not show that the chairman made the report contemplated by the act, that the intention aud motives of the emancipator were consistent with the interest and policy of the State.
    This was an action of trespass brought in Rutherford circuit court, on the 5th of June, 1838, by Stewart, a man of color, against Isaac Miller and Josephus Moore.- The declaration contained three counts; the first, a count for an aggravated assault and battery, and false imprisonment; the second, for a common assault and battery and false imprisonment; the third, for a common assault and battery.
    The defendants pleaded that the “plaintiff, before and at the-time of the commencement of the suit, was not, and is not now, a freeman, but on the contrary, was and is now a slave, the property of,” &c. This plea was verified by the oath of one of the defendants as a plea in abatement. _ The plaintiff replied that he was a free man; and issue was thereupon joined.
    On the trial of this issue at November Term, 1838, before his Honor Judge Anderson and a jury of Rutherford, the plaintiff offered in evidence the following record of the county court of Rutherford, duly authenticated: “State of Tennessee — Rutherford County Court, November Term, 1837., Petition to emancipate Stewart. Be it remembered that on the 6th day of November, 1837, before the worshipful county court, present,” &c'. (enumerating ten justices,) “and others, justices of said county. The justices holding said court upon the petition of Jacob Wright, executor of Mary McElhatton deceased, — it appearing to the satisfaction of the court, that said Mary McElhatton deceased, declared by her will, which was duly proven and admitted to record in this court at Feb.' i’uary Term, 1830, her negro man Stewart to bo Tree, on his paying one hundred and fifty dollars, — and that said one dred and fifty dbllars have been paid to said executor by said Stewart, who, being present and inspected by the court, is more particularly described as follows, to wit:” (then follows a description of the plaintiff’s person.) “And the said Wright having given bond and security, as required by the act of the Legislature in such cases, the Court, composed of the justices aforesaid, do therefore consider and adjudge that the said Stewart, be held and deemed a free man.”
    On the objection of the defendants’ counsel, this record was excluded by the court. The plaintiff then read the petition of the executor of Mrs. McElhatton addressed to the county court of Rutherford, setting forth the bequest in her will in favor of Stewart; the fact that the condition on which he was to be free had been performed by him, and praying that he might be emancipated.
    The defendant then gave evidence that Stewart had been the slave of Mary McElhatton. And upon this state of the proof, his Honor charged the jury that if it was proved to their satisfaction, that the plaintiff had ever been held in slavery, that it was necessary for him to produce record evidence of his freedom before he had a right to recover. The jury found a verdict for the defendants. The plaintiff moved for a new trial, which the court refused, and pronounced judgment in favor of the defendants; whereupon the plaintiff tendered a bill of exceptions setting out the case as above stated,, and appealed in error.
    The act of 1801, conferring upon the county court jurisdiction to emancipate slaves, provides in the first section— That when any person, being a resident of the state, is owner of slaves whom he is desirous of setting free, he shall prefer a petition to the court of the county in which he resides, setting forth the intention and motives for such emancipation; and if the court, upon examining the reason set forth in said petition, should be of opinion that, acceding to the same, would be consistent with the intent and policy of the state, the chairman thereof shall report on the petition accordingly, and sign his name thereto, which petition shall be filed in the of-
      ^¿ce 0j ^ie 6qer/c 0j' sct^g county. The argument turned in this COurt upon the construction of this lawt
    January 31.
    February 4.
    Ready, for the defendants,
    insisted that the proceedings of the county court in the matter of the emancipation of Stewart, were null, because the report of the chairman had not been made; for, said the counsel, the jurisdiction of the court in the premises is a limited one, and all the matters of fact necessary to give occasion to the exercise of the jurisdiction should appear, or else the proceedings are unsupported by the authority of the law.
    Keeble, for the plaintiff,
    said that the petition itself, stating the facts upon which the petitioner based his application, Was a sufficient ground to authorise the court to act; that the law did not make the jurisdiction depend upon the report, which was designed simply to satisfy the court of the truth of the facts and motives assigned for the application; that this court would presume the report to have been made, or that the court was otherwise satisfied of the facts, either of which would be sufficient.
   Green, J.

delivered the opinion of the court.

This is an action for an assault and battery brought by thb p]a¡ntjfFjn error, against the defendants in error. The defendants pleaded in abatement, that the plaintiff was a slave.

On the trial of-the issue, whether the plaintiff was a free man, or not, he offered in evidence a copy from the records of the county court of Rutherford, by which it appears that a petition bad been filed at the November term of that court, 1827, by Jacob Wright, executor of Mary McElhatton, setting forth that the said Mary had departed this life, having first made her will, which had been duly recorded in said court, by which she directed her negro man Stewart to be free, on his paying to his executor $ 150; that said $¡150 had been paid by him, and the said Wright having given bond and security as the law requires, the court, composed of more than nine justices, “consider and adjudge” that said Stewart be held and deemed a free man.

This copy from the minutes of the court, contains also a minute description of Stewart’s person.

This evidence was rejected by the court; and a verdict and judgment were pronounced against the plaintiff.

We think the record of the proceedings of the court, by which tho freedom of the plaintiff was declared and adjudged, ought to have been read as evidence. It is true, the proceedings were not in strict conformity to the provisions of the act of 1801, c. 27. That act does not require the proceedings of the court to be entered upon its minutes; but provides, that the court shall examine the reasons set forth in the petition, and if they shall think that, acceding thereto will be consistent with the interest and policy of the state, the chairman of the court shall report on the petition accordingly, and sign his name thereto, which shall be filed in the office of the clerk of the county. It is further provided that no such petition shall be granted, unless the petitioner first enter into bonds and security to reimburse such damages as the county may sustain in consequence of such slave becoming chargeable, “and upon these requisitions being complied with, such slave shall be held and deemed free.”

In this case every thing was done which the law requires, except the making and filing the report of the chairman. But as the subject matter of that report was entered upon the minutes, in presence of the nine justices, and signed by the court, we think there is a substantial compliance with the act of assembly. The proceeding is certainly preserved in a more authentic form than would have been the case had the report been made as the act requires.

This proceeding is in.the nature of a suit for freedom. By the act of 1829, c 29, it is made the duty of an executor, where the testator may have set his slave free by his will, to petition the court accordingly; and if he fail or refuse to do so the slave is authorised to file a bill in equity, by his next friend, and upon it being made to appear to the court that such slave ought of right to be free, it shall be so ordered by the court.

In this latter case the proceeding is clearly in the nature of a suit, and so we think in the former; and in either case, if the court having jurisdiction, pronounce judgment that the applicant “shall be held and deemed free,” it is sufficient to entitle him to his freedom, although there may not be the most exact regularity in the proceeding.

Let the judgment be reversed, and the cause remanded for another trial.  