Gelston v. Russel , 11 Johns. 415 ( 1814 )

Yates, J.

delivered the opinion of the court. The question in this case is, whether the evidence is sufficient to establish the plaintiff’s property in the slave.

The mother of Peter was the slave of the father of James Latham. By the statute, (sess. 11. c. 40. s. 2.) he followed, from his birth, the state and condition of his mother; and, consequently, he was the slave of Latham, the father of James $ unless, after going to Canada during the revolution, the master has been attainted of adhering to the enemies of the country, which would operate as a lawful manumission of the slave. (Laws of New-Yorlc, sess. 9. c. 58. s. 29.) But such attainder and conviction, if any, has not been shown. In 1798, the time when Peter was sold by the deputy sheriff it appears Latham, the father of James, was living, and resided in Canada ; and he then continued to be the owner. The abandonment of his family and property could not devest him of his right to the slave; and the mere possession could not create sueh an interest in James Latham, his son, as to subject the slave to be seized and sold for the payment of his debts. The plaintiff ticlston, having only purchased the right and title of James Latham from the deputy sheriff, he cannot, now, under that sale, establish his claim to him, as his slave, who, if not a freeman altogether, must be considered as part of the estate of Latham, the owner of the slave’s mother, and subject to the disposition and control of his executors and administrators, in the same manner as the other personal property of the deceased, unless otherwise directed by will. The plaintiff having no claim to the services of Peter, the nonsuit was properly granted by the judge; and the motion to set it aside must be denied.

Motion denied.