Emily v. Smith ( 1829 )

Judge Underwood

delivered the opinion of the Court.

The deed under which the plaintiff in error claims her freedom, completely emancipated her, from the time of its execution, with the reservation to retain the guardianship of Emily, then an infant; until she should arrive at age. This reservation was personal to Enoch Smith; The defendant had no right to retain the plaintiff; against her will, after the death of said Enoch. The evidence conduced to show an illegal detention. The court erred in their instructions to the jury, to find, as in case of a non-suit.

The judgment must, therefore, be reversed with costs, and a new trial awarded.