Rebecca Ringgold and others, Negroes, vs. David Barley, 5 Md. 186

Mason, J., delivered the opinion of this court. The appellants filed their petition in Kent county circuit court, in which they claim their freedom under the act of Assembly of the year 1831, ch. 323, sec. 4. By that act it is provided, that it shall not be lawful to import or bring into this State any negro slave, for sale or to reside; and any persan so offending shall forfeit for such offence the negro brought into the State contrary to this act; and suck negro shall be entitled to freedom., &c.

The testimony presents substantially this case: In the year 1832, Money, under whom the appellee claims the negroes, having sold all his properly in Maryland, left for the State of Missouri, carrying with him the petitioner and other of his slaves, together with his own family. Such of his slaves as were unwilling to remove with him to Missouri had been previously sold to the south. He had repeatedly declared his intention of settling in Missouri and of purchasing public lands in that State.

That said Money, immediately on his arrival in Missouri, rented land and commenced farming; that he continued to farm till November 1833, when, falling into bad health and changing his purposes, he sold out his property of every kind, except his slaves, and returned to Maryland, bringing with him the petitioner, Rebecca. On the 19th of March 1834, Money returned a list of the slaves so brought back with him to the clerk of Kent county court,, accompanied with the declaration, verified by oath,- of his intention to become a citizen of this State.

Out of this state of facts several questions arose in the trial below. We will proceed to consider, first, the questions presented by the second exception.

The testimony having been closed, the petitioners prayed the court to instruct the jury, “that if they believed Money left the State of Maryland with his family and servants and removed to the State of Missouri,with an intention of remaining there for an indefinite time, and as a place of fixed present domicil, and while there engaged in agriculture, it became his place of domicil, notwithstanding he might have entertained a floating intention of returning to Maryland at some future petiod.” This prayer was rejected, whether properly or not we are now required to decide.

It is settled by many well adjudged cases, especially by the case of Cross vs. Black, 9 Gill & Johns., 198, that a citizen of one State may break up his establishment, and, with the avowed purpose of becoming a resident of another, may actually leave his place of former abode, yet if before be reaches the point of his intended destination changes his purpose atld returns, he does not thereby forfeit his residence or his rights as a citizen at the place of his first abode.

The mere ihténtidn. to acquire a new domicil without tlie feci of an actual removal avails nothing, neither does the fact of a removal without the intention. Somerville vs. Somerville, 5 Ves., 750, 787. Harvard College vs. Gore, 5 Pick., 370. When once removed to his new domicil, however, the party’s purpose to remain need not be fixed and unalterable.

If it becomes a place of fixed present domicil it will be sufficient to fix a residence, and although there may be a jloating intention to return to Ms former place of abode at some future period, still these circumstances will not defeat the newly acquired residence or the rights and obligations which attach to it. The question now before us is, was there evidence tending to satisfy the jury that Money did acquire such a residence or domicil in Missouri, as to forfeit his former residence in Maryland?

In pursuance of the intention formed in Maryland, he did take up his abode in Missouri, and commenced pursuing the usual avocation’s of life. He identified himself and all his interests, for the time being at least, with his new place of abode. IF his expectations had been realized and his hopes fulfilled, he doubtless would have made this new location his permanent abiding place. Under such circumstances we cannot but regard the residence of Money, at least, as a place of fixed present domicil,' notwithstanding he may have had a floating intention to return to Maryland at some future period.

If Story’s Conflict of Laws is to be regarded as authority upon such questions, it Settles the very point now under consideration. Indeed the appellants’ prayer which was rejected, presents not only the principle announced by Story, (Conflict of Laws, sec. 46, page 58,) but even employs his identical language, and to sanction that rejection would be to repudiate the high authority of Judge Story, which we are not prepared to do. The case of Baptiste vs. De Volunbrun, 5 Har. & Johns., 86, is entirely dissimilar from this.

In that case the party was compelled by necessity, a vis major, which she could not resist, to leave her domicil and come to this State, and she “constantly and uniformly declared her intention to return to her own country whenever circumstances would permit her to do so with safety.” In the present case the party left his first domicil voluntarily and with the avowed purpose of changing his plaee of abode, and in accordance with this purpose did actually take up his residence in another State, in the manner before' detailed.

Admitting the instruction which the court gave, after refusing the prayer of the appellants, to be correct, as an abstract legal proposition, yet, upon the testimony in the cause, it did not present the law to the jury in a light so favorable to the appellants as the prayer presented by them, and which we think they had a right to insist upon. The refusal of it was therefore erroneous, notwithstanding the substitute for it given by the court.

We have not deemed it necessary to consider or decide the question presented by the first exception, relating to the admissibility of certain testimony therein set out, because it is not probable, upon a future trial, that the appellants will find themselves in a predicament like the one which they now ask to be relieved from.

Nor do we feel at liberty upon this appeal to express any opinion in regard to the necessity of a convietion of the master before the slave can assert his freedom, so fully discussed upon the appellee’s cross-appeal, because it is a point not presented by this record in such a way as would warrant us in deciding it. Judgment reversed and procedendo awarded. Upon the appeal by Bailey, the same judge delivered the following opinion of this court: This is a cross-appeal, and a motion is made by the appellees to dismiss it.

Upon the trial below instructions were asked by both the plaintiffs and defendant, and each was denied by the court. The verdict and judgment were in favor of the defendant, and the plaintiffs appealed. The defendant thereupon also appealed. Under such circumstances we think the defendant cannot sustain his appeal. He cannot be said to be aggrieved by the result of the trial below, because the verdict and judgment were in his favor. If the instructions which he asked for had been granted, the result of the trial could not have been more favorable to his case. Appeal dismissed.