State ex rel. Clements v. Van Lear

Tuck, J., delivered the opinion of this court. This is an action on an appeal bond, executed by the appellees. The cestui que use was one of the complainants in the case of Peters, et al., vs. Van Lear, reported in 4 Gill, 249 . ⁹⁵ When that cause was remanded to the equity court, in pursuance of the decree of the Court of Appeals, a final decree was passed directing the defendant to execute deedsof manumission, according to Mrs. Van Lear’s will. (See Pearce vs. Van Lear, ante, at this term, for a full statement of the case.) From this decree Tan Lear appealed, and gave the bond on which this suit is brought.

The costs have been paid; and the question for our consideration is, whether the plaintiff can recover for the value of his time between the date of the decree and the time it was affirmed, in his behalf, by the Court of Appeals? If Clements had sued at law for his freedom and recovered, and Tan Lear had appealed without a bond, such a claim as that now advanced could not have been sustained. Franklin vs. Waters, 8 Gill, 322 . In contemplation of law the petitioner remains a slave until finally discharged.

Either party may appeal, but the proceedings on the appeal are merely a continuance of the original cause. The recognizance required of the master is the negro’s security, whilst the master has none except that afforded by the 25th, 26th and 27th sections of the act of 1796, ch. 67. It cannot be maintained that one can be required to contract, by bond or otherwise, with a negro whom he claims to be his property. The suggestion is inconsistent with the relations between the parties.

The fact