State ex rel. Clements v. Van Lear ( 1853 )

Tuck, J.,

delivered the opinion of this court.

This is an action on an appeal bond, executed by the appellees. The cestui que use was one of the complainants in the case of Peters, et al., vs. Van Lear, reported in 4 Gill, 249. When that cause was remanded to the equity court, in pursuance of the decree of the Court of Appeals, a final decree was passed directing the defendant to execute deedsof manumission, according to Mrs. Van Lear’s will. (See Pearce vs. Van Lear, ante, at this term, for a full statement of the case.) From this decree Tan Lear appealed, and gave the bond on which this suit is brought. The costs have been paid; and the question for our consideration is, whether the plaintiff can recover for the value of his time between the date of the decree and the time it was affirmed, in his behalf, by the Court of Appeals?

If Clements had sued at law for his freedom and recovered, and Tan Lear had appealed without a bond, such a claim as that now advanced could not have been sustained. Franklin vs. Waters, 8 Gill, 322. In contemplation of law the petitioner remains a slave until finally discharged. Either party may appeal, but the proceedings on the appeal are merely a continuance of the original cause. The recognizance required of the master is the negro’s security, whilst the master has none except that afforded by the 25th, 26th and 27th sections of the act of 1796, ch. 67. It cannot be maintained that one can be required to contract, by bond or otherwise, with a negro whom he claims to be his property. The suggestion is inconsistent with the relations between the parties. The fact that the State is the obligee in this bond does not vary the case, even if an appeal bond to the State for the use of severed parties can be enforced — a point that we need not decide. “A negro, so long as he is a slave, can have no rights adverse to those of his master; he can neither sue nor be sued, nor can he make any contract or acquire any rights under a deed which either a court of law or of equity can enforce.” Wicks vs. Chew, 4 H. & J., 547. And “where they are held and claimed as slaves they are presumed to be slaves.” Hall vs. Mullin, 5 H. & J., 190. This being the law, it cannot be evaded by preferring the claim in the name of the State for the use of the negro. The decree did not make the parties free. The Court of Appeals, in 4 Gill, 249, decided, that the deeds of manumission were an indispensable prerequisite to tbe assertion of their freedom. As long as the contest continued and the deed was not executed they were slaves under the law, because held and claimed as such.

Cases of hardship may occur and injustice be the consequence. But such a result in the present case is not more oppressive than withholding compensation for the time, perhaps a number of years, that a petitioner may be held in bondage,before his right to freedom is finally established. Yet no' remedy exists in such a case, 8 Gill, 322; and we have no' authority to grant relief where (he law has not secured a right.

For these reasons, expressing no opinion on the other points' made by the parties, we think the demurrer was properly ruled with- the defendants below, and affirm the judgment.

Judgment affirmed.-