Zeigler vs. Sentzner.-1836.

or to impose any obligation upon her officers to renew to the widow or first and second son of a deceased stall-renter. What then is the bill? The complainant seeks to enforce a contract as between defendant and himself, or others for him, by which he has been induced to part with a subject of property. It assumes but that for this, the complainant would have had an existing transferable right which the laws can notice.

At the death of the ancestor, he left no representative capable of doing the business of a victualler, to manage the stalls; or competent to answer to the city for the rent and fees. At his death, if some other person had not sought the stalls, the corporation must have rented them to another butcher. Now the court sees the complainant can only claim by proof of usage of a right in the minor to renew in his own name, or in the name of a trustee for his benefit. For if he has no right which the law can notice, and the stalls reverted to the corporation at the expiration of the ancestor's annual license, and complainant had no right by no contract to relinquish could he be injured. There may be contracts in relation to good will, as where the vendor has the right, and contracts not to act in his trade founded on good consideration may be enforced, because injurious to the proprietor. All these contracts are founded upon a right which is surrendered; an obvious, legal right, but there is no case conferring a right of action short of this.

Is there then on the bill and proof a case which equity can relieve? The general rule is, that when there a remedy at aw, there should be no interposition in Chancery. Adair vs. Winchester, 7 Gill and John. 114. Dilly and Heckrotte vs. Barnard, ante. The want of jurisdiction may be urged at final hearing. The act of 1832, does not interfere with that question nor the want of parties. The exceptions under that act are confined to the evidence, and the sufficiency of the averments of the complainant, provided the proof shows he had a cause of action. The point is open, can Chancery grant relief? There is no resemblance between the case,

Zeigler vs. Sentzner.-1836.

1 Cond. Ch. R. 39, and Jacob and Walk. 556, and 1 Merr. 459. Whether a contract is valid at law or not, or whether damages be recoverable there, parties cannot be relieved in equity, if it is impracticable to execute an agreement specifically, as where lapse of time has rendered it impossible— and if there be an adequate remedy at law for violation of a contract, the result is the same. As to specific performance that cannot be decreed against this defendant, for at the end of every year the possession reverted to the city, and no decree could pass against her, nor was she bound by any usage. If there was such a contract the remedy must be at law. 1 Gill and John. 221. A defendant cannot be turned into a trustee for the sole purpose of conferring jurisdiction. 1 Con. Ch. R. 39. The counsel then proceeded to discuss the second and third propositions first stated by him, which relate exclusively to facts. The motion for suspending the execution he submitted on the argument of his colleague.

CHAMBERS, Judge, delivered the opinion of the court. 'The bill in this case does not claim a specific performance of the contract charged. That is impossible, inasmuch as the defendant, now the appellant, has not and never had the title to the property or thing in relation to which, or to the rights attached to it, the contract is said to have been made.

It cannot be sustained as claiming an account for property belonging to an infant, upon which the appellant entered, thereby making himself liable as guardian, because the title to the property occupied never was in the complainant.

Fraud is not alleged in the bill, nor does it profess to be a bill for a disclosure. We have not been able to discover to which head of Chancery jurisdiction we are to refer for the authority to grant the relief claimed in this bill.

The argument for the appellee seems to assume, that there is something in the character of what is termed in the bill, "good will," to vest such jurisdiction in regard to a contract for the sale of it. In Cruttwell vs. Lye, 17 Ves. 335, good will is defined to be, "the probability that the old customers

Wilson vs. Barnet.-1836.

will resort to the old place," and considering this to be what is intended here, we perceive nothing in its character requiring us to adopt such a doctrine upon principle. A careful examination of the cases referred to, and others, has not resulted in finding any decision, asserting that courts of equity will assume jurisdiction over contracts because they relate to good will. They countenance rather the contrary opinion. 1 Chit. Gen. Prac. 858, 859, and the cases there cited.

For the purpose of the argument we will concede the utmost, which the complainant, the appellee, here can claim, that good will is as much the proper subject of contract and sale as another vendible property-that the contract of sale is distinctly and sufficiently alleged in the bill and proved by the testimony; yet we think this must be considered a bill claiming damages for the violation of a contract, the appropriate and ample redress for which is to be found in a court of law, at the hands of a jury.

With this view of the case it is unnecessary to enter into a minute examination of the facts as alleged, or to attempt a reconciliation of the testimony.

If a valid contract has been made, and can be established to entitle the appellee to recover for its violation, his remedy is at law, not in equity; if no such contract can be established, he can have no ground of claim before either tribunal.

The decree in this case is accordingly to be reversed; and the bill dismissed; but under all the circumstances of the case without costs. The court will sign a decree accordingly; and also an order directing the money deposited by the appellant to be repaid to him.

DECREE REVERSED.

THOMAS S. WILSON VS. NEGRO ANN BARNET.-Dec. 1836.

Proof that a negro woman had been living and acting as a free person from the 27th of July, 1830, to the 11th of October, 1836, does not furnish any evidence whatever in support of her claim to freedom, unless it can be

Wilson vs. Barnet.-1836.

shown, that the party entitled to her custody and service, knew of her place of residence during the period of her so living and acting.

Thus, where it was in proof, that the petitioner, who was born the slave of a testatrix who lived and died on the Eastern Shore of Maryland, lived as a free woman in the City of Baltimore, for the period above mentioned, and who by the will of the testatrix was entitled to her freedom if the residue of the personal estate was sufficient to pay her debts: Held, that her so living, did not furnish prima facie evidence of the sufficiency of said residue for that purpose, or any evidence upon which a direction to that effect could be given to the jury, there being no proof that the personal representative of the testatrix was aware of her residence.

An order passed by the Orphans' court, directing the administrator to sell the slaves of the testatrix, is not evidence of the insufficiency of the other personal assets, in opposition to the petitioner's right to freedom.

APPEAL from Baltimore City court.

This was a petition for freedom, filed on the 12th October, 1836, by the appellee, against the appellant. The freedom being denied, at the trial of that issue, the following exception was taken.

The petitioner offered in evidence, that she had been living and acting in the City of Baltimore, as a free woman, from the 27th July, 1830, until she was arrested as a slave by the defendant on the 11th October, 1836, and confined in Baltimore county jail as a runaway by his order. The defendant, the appellant, then offered in evidence, that the petitioner was born the slave of Elizabeth Richmond, late of Queen Anne county, in the State of Maryland. That the said Elizabeth, among other bequests devised as follows: "Item-In case my personal property, other than negroes, shall not be sufficient to pay debts and legacies; I do hereby direct my executor hereafter mentioned, to sell so many of my male negroes until they attain the age of thirty-two years, at which time it is my will and desire that they be free, those under seven years of age I wish to be free at the age of twenty-five, and none to be sold out of the State.

"Item-I give and bequeath my negro man Sam, to the Rev. Thomas D. Monnelly, to serve him three years, at which time I wish him to be free.

"I give old William, at his own request, to his friend,

Wilson vs. Barnet.-1836.

John Holland, a free negro, and all the others who have. attained to the age of forty or upwards, to be given or sold for no more than one dollar a piece to such of their free relations as they may choose to go to. As it is my wish and desire that all my female negroes may be free at my decease, unless my debts should require the sale of them, in which case I desire, that as many of them that is under the age of twenty five, may be sold until they arrive to that age, and I desire, that all the children that they may have in the time of their service may be free when their mothers are free.

"I desire the female children under the age of six and seven to be given to their mothers."

The testatrix died on the 7th December, 1831. The will was duly proved and recorded, and letters of administration granted to the defendant.

The appellant also offered in evidence the inventory of the personal estate of the said Elizabeth, which included the petitioner, and described her above thirty years of age, and then read an order from the Orphans' court of Queen Anne county, from which court the defendant had received his testamentary letters, as follows:

"Queen Anne county, Orphans' court, August term, 1836. On application of Thomas S. Wilson, administrator, with the will annexed of Elizabeth Richmond, deceased, ordered that he sell at public or private sale at his discretion, for cash or on credit, for not less than the appraised value the following negroes, belonging to the estate of the said deceased, viz: Ann Barney, and her daughter, Ann Milly Gross, and her two children, Jacob and Jemmy, and boy Robert."

Thereupon the defendant by his counsel, prayed the court to instruct the jury, that the petitioner is not entitled to their verdict, and that they must find a verdict for the defendant.

1st. Because the petitioner has offered no evidence to show that she was free born.