MILLER V. HERBERT, 46 U. S. 72 (1847)

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U.S. Supreme Court

Miller v. Herbert, 46 U.S. 5 How. 72 72 (1847)

Miller v. Herbert

46 U.S. (5 How.) 72


Under a statute of Maryland passed in 1796, a deed of manumission is not good unless recorded within six months after its date, and this law is in force in Washington county, District of Columbia.

The statutes and decisions of Maryland examined.

The defendants in error filed their petition in the circuit court, by which they claimed a right to their freedom, under a deed of manumission executed to them on 28 February, 1842, by their owner, George Miller, who was an inhabitant of Washington County, at the date of the deed, and at the time of his death, and on whose estate the plaintiff in error had taken administration.

The petition, setting out the character of the claim of the defendants in error, was in the following words.

"To the Honorable, Judges of the Circuit Court of the District of Columbia for Washington County: "

"The petition of Betsey Herbert and Caroline Herbert humbly showeth that your petitioners were the slaves of George Miller, late of the City of Washington, deceased; that the said decedent, in his lifetime, intending to manumit and set free from slavery your petitioners, caused to be prepared a paper writing for that purpose, and sent for S. Drury, Esq., a justice of the peace of said county,

Page 46 U. S. 73

to take his acknowledgment hereof, and also Charles Bowerman and John Hoover to witness the execution thereof; that on 28 February, 1842, the said justice and the said witnesses came to the house of said George Miller, and the said George Miller did then and there, in the presence of the said witnesses, execute the said paper writing, and did acknowledge the same before the said justice of the peace, but the said witnesses neglected to sign, or did not understand that they were called upon to sign, the said instrument as witnesses; that the said George Miller retained the said paper writing in his possession until some short time before his death, when he gave it to your petitioners, with instructions to place it in the hands and follow the directions of Mr. John McLelland, of this city, which your petitioner did; and the said John McLelland, discharging the said trust, placed the said paper writing in the hands of Joseph H. Bradley, Esq., an attorney of this Court, who lodged the said paper in the Orphans' court of the county aforesaid."

"Your petitioners claim that, by the said paper writing, so executed and delivered, they are entitled to their freedom, and they are advised it was not necessary that the said paper should have been signed by said witnesses, and that the same is a good and operative deed. But if the said deed ought to have been signed by said witnesses, they claim that this Court, acting as a court of chancery, will permit the execution thereof to be proved now, and will decree the said deed to be put on record."

"The further show that, after the delivery of the said deed to your petitioners, the said George Miller departed this life intestate, and that Henry Miller administered on his estate, and now claims them as part of the personal estate of said George Miller, and they pray that he may be summoned and required to show cause why the paper writing shall not be admitted to record, and your petitioners declared free."

"JOSEPH H. BRADLEY, for petitioners"

The counsel for the respective parties then filed the following agreement:

"Agreement of Counsel"

"It is agreed, that if this Court shall be of opinion that they would have power, sitting in chancery, to decree the record of the deed, the execution of which was imperfect under the law, because the witnesses did not sign it, 'in such case this Court shall have the same power to decree or adjudge the said defect to be rectified as it would if sitting as a court of chancery,' it being distinctly understood that the facts are not admitted, but proof thereof is required, and the defendant is to offer any legal proof to meet the petitioners' case; and the petitioners are to sustain their petition by competent proof. It being the object of this agreement to avoid the expense

Page 46 U. S. 74

of a bill in chancery, and to bring all the questions which may arise at law or in equity before the court under the petition."

"JOSEPH H. BRADLEY, for Petitioners"

"WILLIAM L. BRENT, for Defendant"

The instrument relied on in support of the petition, as the deed of manumission from George Miller, and referred to in the bill of exceptions as paper marked A, was in these words:

"To all whom it may concern, be it know that I, George Miller, of Washington county, District of Columbia, for divers good causes and considerations me thereunto moving, have released from slavery, liberated, manumitted, and set free, and by these presents do hereby release from slavery, liberate, manumit, and set free, my negro women, one named Betsey Herbert, about forty-two years of age, and the other named Caroline Herbert, about seventeen years of age, both able to work and gain a sufficient livelihood and maintenance; and they, the said negro women, named Betsey Herbert and Caroline Herbert, I do declare to be henceforth free, manumitted, and discharged from all manner of service or service to me, my executors or administrators, forever."

In witness whereof I have hereunto set my hand and seal, this 27th day of February, in the year of our Lord one thousand eight hundred and forty-two.


"District of Columbia, Washington County, to-wit: "

"Be it remembered, and it is hereby certified, that on 28 February, in the year of our Lord eighteen hundred and forty-two, personally appeared before me, a justice of the peace in and for said county and district, George Miller, and acknowledged the foregoing deed or manumission to be his act and deed for the purposes therein mentioned, as witness my hand and seal."

"SAMUEL DRURY, J. P. [Seal]"

Issue having been joined upon the right alleged in the petition, and a jury been empanelled to try that issue, the following bill of exceptions was, at the trial, sealed by the judges.

"Defendant's Bill of Exceptions"

"Betsey and Caroline Herbert, v. Henry Miller, Administrator of George Miller."

"The plaintiffs offered evidence tending to prove that George Miller, who owned and held the slaves, petitioners, sent for a magistrate, Mr. Drury, and also two witnesses to witness the paper market A., which paper was signed by said Miller in the presence of said witnesses, and acknowledged before said Drury, but was not then, and never was, signed by said intended attesting witnesses, before whom and in whose presence said Miller admitted the deed to be his, and desired said witnesses to attest to the same; to the

Page 46 U. S. 75

reading of said paper in evidence the defendant objected, and said objection was overruled and excepted to by the defendant. The defendant then offered evidence tending to prove that the paper marked A was, immediately upon the death of the maker, Miller, which took place about eighteen months after the execution thereof, delivered to Mr. McLelland, by the petitioners, who stated that it was so done by the direction of Miller, and who also stated that they held possession of the paper from the time of its execution until that time, and also that Miller, the grantor in said paper A, died largely indebted, and left no property other than said petitioners, sufficient to pay his debts, and also that defendant has regularly and duly administered upon the estate in this county of said deceased. Whereupon the defendant, by his counsel, moved the court to instruct the jury that upon the evidence aforesaid the plaintiffs are not entitled to recover, which instruction was refused by the court, and the defendant excepts to said refusal, and prays that this his several bills of exceptions may be signed, sealed, and enrolled, which is accordingly done."

"W. CRANCH [Seal]"

"B. THURSTON [Seal]"

The jury, under the instructions given by the court, found a verdict for the petitioners, viz., that they were free.

To review these two decisions of the court, the case was brought up by writ of error. chanrobles.com-red

Page 46 U. S. 78


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