Jesse Pocock vs. Joshua Hendricks, 8 G. & J. 421

Dorsey, Judge, delivered the opinion of the court. The objections raised in the two first exceptions taken by the plaintiff were rightly sustained, according to the principles settled in the case of Flack vs. Green, 3 Gill and John. 474. The next inquiry is, did the county court' err in rejecting the plaintiff’s four prayers in the second bill of exceptions.

The propriety of granting the three first prayers depends entirely upon the question, whether there was evidence in the cause legally sufficient to have been left to the jury to find the fact; that the bill of sale from Mary Hare was fraudulently obtained by the plaintiff.

There is no evidence other than the bill of sale itself; that any consideration was paid by the plaintiff to Mary Hare ; or that they stood in any relation to each other, which rendered it probable that such a bill of sale would have been executed, but upon full and adequate consideration; nor is it in proof, that the bill of sale was ever read, or its import communicated or explained to Mary Hare.

It is in evidence that she could neither write, nor read writing; - that by the agreement of the parties the instrument to haye been executed was not an absolute bill of-sale, but was intended to secure the plaintiff from loss by reason of his seeurityship 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 ho 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 thé 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.

Súch. a decisión is neither conformable to the 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.