Pocock vs. Hendricks.-1837.

write, nor read writing; that by the agreement of the parties the instrument to have been executed was not an absolute bill of sale, but was intended to secure the plaintiff from loss by reason of his securityship for Mary Hare; that he acknowledged the negro was not his property but belonged to the defendant, (who married Mary Hare's daughter,) as part of his wife's estate; that he held the negro in question as security for a liability which was nearly or quite extinguished; that after obtaining the bill of sale and possession of the negro, and after his liabilities were discharged, he suffered the negro slave to go to Mrs. Hare, in Pennsylvania, and remain with her or in her service more than three years, and until the time of her death; and that when asked if he were not afraid he would lose his slave by reason of the emancipation laws of Pennsylvania, he replied, that he had the boy as a surety, and that he believed the money was nearly paid up. Whether these facts are sufficient in point of fact to prove that this bill of sale was fraudulently obtained, it is the exclusive province of the jury to determine; but that they are legally sufficient to be left to the jury to be by them considered, in determining the question, we entertain no doubt. As the fourth prayer which we are called upon to decide is made upon the concession that the bill of sale was obtained by actual fraud practised by the plaintiff, we have only to say that the instrument in question being at law of no validity, we can see no reason why the defendant may not rely upon its invalidity in bar to the plaintiff's action.

In the last exception the prayer on the part of the defendant would have been rightly granted had it called on the jury to find one additional fact, viz: That the bringing of the negro back into the state of Maryland to reside, was the act of the plaintiff, or was done by his authority, or with his approbation. In granting the prayer, the county court have in effect said, that if the bringing the slave to Maryland to reside was the act of a stranger without the authority or approbation of the plaintiff, still the slave is entitled to his freedom. Such a decision is neither conformable to the

Newton vs. Turpin & Willson.-1837.

letter or spirit of the act of assembly, which after prohibiting the bringing or importing into this state any slave for sale or to reside, provides that, any person brought into this state as a slave, contrary to this act, if a slave before, shall thereupon immediately cease to be the property of the person or persons so importing or bringing such slave within this state, and shall be free. We concur with the county court in sustaining defendant's objections to testimony taken in the first and second exceptions; and in all their refusals to grant the prayers made on behalf of the plaintiff, but dissent from the instruction given to the jury at the instance of the defendant's counsel as stated in the third exception, and therefore reverse their judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.

IGNATIUS B. NEWTON vs. FRANCIS B. C. TURPIN AND JACOB C. WILLSON, adm'rs of FRANCIS TURPIN.—June Term, E. S. 1837.

In an action of trover for the value of a negro, sold, and converted by the defendant to his own use, it would be competent to him, under the plea of not guilty, to prove the right of the negro to his freedom. The legislature of Delaware in 1787, passed a law, declaring that all slaves carried into that state, after its passage, for sale, should be free; with a proviso, that it should not extend to or affect persons removing into that state, from any other state with their families, or becoming residents thereof, &c. Held that persons removing into Delaware from the District of Columbia, were within the spirit and intention of the proviso, which was to encourage persons to remove with their slaves and settle in the state, and that consequently their rights of property were protected by it. In construing a law in reference to rights of property, the same strict and literal interpretation is not adopted, as is on some occasions resorted to, in reference to grants of special limited jurisdiction.

APPEAL from Dorchester county court.

This was an action of trover for the value of a negro girl, brought on the 31st of March, 1829, by the appellant, against

Newton vs. Turpin & Willson.-1837.

Francis Turpin: The death of the defendant being suggested, his administrators were made parties, and pleaded that their intestate was not guilty.

At the trial of the cause the plaintiff offered evidence to sustain the issue on his part, that Francis Turpin, the intestate of defendants, resided in Maryland, and owned the said negro as his slave, who also lived in Maryland; that he gave the said negro slave to his daughter, who intermarried with the plaintiff; that the plaintiff after the said gift, removed and carried the said negro girl to Georgetown in the District of Columbia, and resided there for some time; and afterwards, in the year 1826, removed his family and carried the said negro girl slave into the state of Delaware, and there resided with his said family and the said negro girl, during the years 1826, 1827, 1828, and 1829. That some time in the year 1829, the said Francis Turpin, the intestate, took and sold the said girl, and converted her to his own use in Dorchester county in Maryland. The defendant on his part offered in evidence the following act of assembly of Delaware, duly authenticated according to the act of congress, to wit:— Act of the general assembly of the state of Delaware, passed 3d February, 1787 :

Be it enacted, That if any person or persons, shall after the passing of this act, bring any negro or mulatto slave into this state, for sale, or otherwise, the said negro or mulatto slave is hereby declared free to all intents and purposes. Provided nothing in this act, shall be construed to extend or affect, any person or persons, who may move into this state from any other state, with his or her family, and become residents thereof, or who may be travelling through the same, with his or her servants, or slaves, or any inhabitants of this state moving with his or her family into any other state.

Whereupon the defendants prayed the court to direct the jury, that if they find the above facts to be true, that the said negro was entitled to freedom under the laws of Delaware, and the plaintiff in that case cannot sustain his action, and the defendants are entitled to a verdict in their favour. It

Newton vs. Turpin & Willson.-1837.

is agreed between the parties aforesaid, by their attorneys, that the verdict to be found by the jurors, shall be subject to the opinion of the court on the above prayer and point saved. H. PAGE, Attorney for Plaintiff.

JOSIAH BAYLEY, for Defendants. The county court gave judgment for the defendants, pro forma, and the plaintiff appealed to this court.

The cause was argued before STEPHEN, ARCHER, DorSEY, CHAMBERS, and SPENCE, Judges.

DORSEY, Judge, delivered the opinion of the court.

The pro forma judgment of the court below, we think in this case, ought to be reversed; not because the defence set up by the defendants is inadmissible, between the parties, under the pleadings in this cause, but because the slave in question, under the act of assembly of the state of Delaware, is not entitled to her freedom. The design of the proviso or exception in the act of assembly, was to encourage persons removing with their slaves, to settle in Delaware. There could have been no motive with the legislature of the state of Delaware in protecting settlers removing from the state of Maryland or Virginia in the enjoyment of their rights as slaveholders, which did not apply with equal force to like settlers from the District of Columbia. To give to the word "state" in this act of assembly the literal technical import ascribed to it, would be to violate its spirit, the sound and obvious meaning of the law. We do not hold ourselves bound when interpreting its import in reference to rights of property, to give to it the same literal, restricted interpretation, which it has, on some occasions received, when used in reference to a grant of special limited jurisdiction. The judgment of the county court is reversed. Let judgment be entered for the plaintiff according to the agreement of the parties contained in the record.

JUDGMENT REVERSED.

Hammond vs. Hammond.-1837.

HENRY HAMMOND VS. NATHAN AND HENRIETTA HAMMOND.-June, 1837.

H, by his will dated in 1828, devised and bequeathed to his wife, one-third part of his real and personal estate, and to his two sons, Henry and Nathan, in fee simple, all his real property in the city of Annapolis. To another son, and his heirs for ever, he gave his plantation in Anne Arundel county; and all the rest and residue of his estate, both real and personal, after his wife's third should be taken out, he devised and bequeathed to his three sons, share and share alike. Held, that under this will, the wife was entitled to that share of her husband's estate, which the law gave her, and no more; that is, one-third of the real for life, and one-third of the personalty absolutely.

The word "estate" in a devise, will be descriptive of the subject of property, or the quantum of interest, according to the context, and will pass a fee, when the intention of the testator does not restrict it, to import a description, rather than an interest.

Since the act of 1825, ch. 119, a general devise in which words of limitation, or perpetuity are omitted, will pass the whole interest of the testator, upon the assumption that he so intended; that assumed intention, however, being subject to be controlled, by evidence of a contrary intention, indicated by a devise over, by words of limitation, or otherwise.

APPEAL from Chancery.

On the 13th November, 1834, the appellees filed a bill, charging that Henry Hammond, deceased, the father of Nathan, and husband of Henrietta, by his last will and testament, bearing date the 26th of February, 1828, made the following devises :

"I devise and bequeath to my dear wife, Henrietta Hammond, one-third part of my real and personal estate. I give and devise to my sons, Henry Hammond, and Nathan Hammond, in fee simple, all my real property in the city of Annapolis."

"I give and bequeath to my son, John Thomas Hammond, my plantation in Anne Arundel county, called, &c. to him and his heirs for ever."

"I devise and bequeath all the rest and residue of my estate, both real and personal, after my wife's thirds are taken out, to be equally divided amongst my three sons, Henry, Nathan and John Thomas Hammond, share and share alike, and departed this life, leaving the said will in force.