Harriett v. Ridgely , 9 G. & J. 174 ( 1837 )

Dorsey, Judge,

delivered the opinion of the court.

The proceedings in this case have been most irregularly conducted, and under any modification which has been given to them, it is difficult to conceive upon what grounds a successful result to the petitioner’s application could have been anticipated. The petition upon its face presents no such case as would have justified the interference of a court of justice, and either upon demurrer or suggestion to the court, it ought to have been dismissed. None of the provisions of the act of 1817, ch. 112, which have been relied on, can be invoked to the support of such a petition. Assuming the truth of all its statements, and the absence of all the other proof to be found in the record, and there is no law in this state which in such a case would warrant an interference with the rights of the slaveholder in executing the designs imputed to him by the petition.

As if foreseeing the utter inability of sustaining this petition under the act of 1817, on which it was predicated, the petitioner’s counsel promptly availed themselves of an opportunity afforded by the appellee, and join issue upon the petitioner’s right to freedom — thus abandoning all the grounds assumed by the petition, and asserting a right wholly inconsistent with its allegations. The judgment of the court could not have been otherwise than against her, as conceding her to have been the absolute property of Mrs. -Dali, by the instrument of her emancipation, she was a slave for three years yet to come. But-supposing that obstacle to be removed, the decision of the court must have been the same. By the proof in the cause the'petitioner was not the slave of Mrs. Dali, and therefore derived no title to freedom under her will. But it is insisted that the appellee being the executor of Mrs. Dali, and having returned the petitioner as her slave in the inventory of her effects, is estopped from shewing that the appellant was the slave.of another. ’ There is no such estoppel ' in the case. The executor is' not concluded by the inventory, nor is it conclusive upon any body else — he may at any time upon proof of the error obtain a credit in his settlements with the Orphans’ court for the appraisement of the petitioner, or he may obtain the same allowance when called on to account either by the creditors or distributees of his testatrix. The privilege of establishing the same fact cannot be denied him in the present proceeding.

.It might be inferred from the argument. in behalf of the appellant, that the court below were called on to decide upon the rights of the appellee to hold the petitioner in slavery, and not the title of the petitioner to freedom. Such is not the issue. The question is, is the petitioner free ? No matter how destitute of right may be the claim of him who now seeks to detain her in bondage, if found to be the slave of any body, the judgment of the court must be against her.

JUDGMENT AFFIRMED.