Sanders vs. Ward et al.

freeman, always a freeman. What process has the law, for turning a free man into a slave?

If then, it be true, that the law has no process by which the freed negroes may be turned back into slaves, even although they remain in the State, it follows, that if they do remain, they will, for all time, increase the number of free persons of color in the State.

And may they not remain if they please. It is true, the will requires the executor to remove them to a free State. But does this give him the right to remove them against their wish? The going to a free State, is a thing for their benefit and quilibet potest renunciare juri pro se introducto. And supposing it does-how is he to enforce the right? There is no writ by which, one freeman can take another freeman and put him out of the State. The executor, then, cannot enforce the right by law. His physical power, therefore, is all that is left him to resort to, and this, it will genererally happen, will be, as the physical power of one, to the physical power of many.

Is it not true, then, that it is a doubtful question, whether the negroes will not have the power, if not the right, to remain in the State for all time, even without the consent of the executor? I think so.

But suppose the negroes all to have been, some how, removed into the free States, what is to prevent them from returning? Penalties? A feeble barrier. Already one or more of the negroes manumitted by the Waters Will (19 Ga. 65,) have returned from Liberia-a feat far more difficult, than the return of such negroes from any one of the free States. And what is more, public opinion, as far as I can judge of it, welcomes their return.

It is not only true, then, that to hold such a will as this, valid, is a sure way to make it add temporarily to the number of free persons of color in the State; but it is further true, that to do so, is a sure way to make it give chances for additions to be permanently added to their number.

VOL. XXV.-9

Sanders vs. Ward et al.

Therefore, I say it is true, that, to follow the letter of the statute and hold such a will as this, void, is the best possible way of accomplishing the spirit of the statute.

So much for the second of the propositions, and its proof. 3. When the letter of a statute, says, that a writing shall be void; and when, to hold it, void, is the best possible way of accomplishing the spirit of the statute, Courts are bound to hold the writing void.

To say the contrary, is to say, that Courts are not bound by law; for if the letter of a statute, when backed by the spirit of the statute, is not law, nothing can be law.

Thus, then, I have re-stated the three propositions with the proof. And the general conclusion, to which they lead, is, that Courts are bound to hold such a will as this, void, if Courts are bound by law.

I remark, that I have rested these propositions on the Act of 1818, but that I could just as well have rested them on the Act of 1801. The propositions derive equal support from both Acts.

Now what have I heard, in answer to these propositions? A denial of any of them? Never. I have heard two things, in answer to them.

Of these, the first may be thus stated: A man, while alive, may himself, carry his slaves to a free country, and so liberate them there; whatever a man may himself do, while alive, he may, by will, authorize an executor to do, after his death.

To this, I reply, that a man cannot authorize any thing to be done by a will that is void, and, that a will for effecting emancipation even out of the State, is, as we have seen, a will that is void.

The second, is, decisions;—a decision made by a Superior Court in 1830; (Dudley R. 170;) and several decisions of this Court, made within the last ten or a dozen years.

To this I reply, first, that if the three propositions are true, these decisions were wrong; for they are decisions directly

Sanders vs. Ward et al.

repugnant to two statutes-the said statutes of 1801, and

1818.

Secondly, I say that they are decisions which have met with nothing but rebellion, and that continually; witness the ever recurring caveats to wills giving any kind of manumission.

Thirdly, I say, that they are decisions of which the first was made before the anti-slavery sentiment had quite left us; and that the others are decisions which, as I persuade myself, merely followed the first, being made on the notion, that a precedent is to be followed, not questioned; and I say, that decisions made on that principle, cannot have as much authoritative force, as decisions made on the principle, that law is to be followed, even although a precedent has to be questioned. An echo is not entitled to rank with an original sound.

The question, then, becomes this, are Courts bound to follow decisions that are wrong? Rather a startling doctrine; but it is nevertheless, one which I must admit has, at least, has had, a place in the law. On it rest, common recoveries, for one thing. Communis error facit jus; so it is said. But then, I ask, what is communis error? And, I answer, that it is an error which must have been living and growing for a long time, so that it has its roots running and spreading every where in the community, and to tear it up, would be, to tear the community up with it. Is the error of these decisions such an error as this? Surely not. Its beginning was within less than thirty years ago; its few repetitions were quite recent-within the last dozen years; it has not a root running out into the community, for the beneficiaries of it, having gone abroad to the emancipation there prepared for them, have ceased to be a part of the community. Correcting the error, therefore, would not touch anything held by the community. True it may be, that correcting it would be disappointing expectation in the case in which the correction was made, and possibly, in some few others, those

North vs. Ashcraft and Ashcraft.

coming into existence at about the same time with that case; but this would happen, if the decision were not a decision correcting an error, but were an original decision. It must happen, that a first decision will disappoint one side or the other.

I do not think, then, that Courts are bound to follow these erroneous decisions.

Thus, I have said what I proposed to say.

The result is, that I find myself where I was. Therefore, I must still consider the manumission part of such a will as this, void, and, consequently, must dissent from the judgment of the Court.

SMITH & NORTH, Plaintiffs in error, vs. ELAM S. ASHCRAFT and ELIZA S. ASHCRAFT, Defendants in error.

A demand for $28, is not beneath the dignity of a Court of Equity in Georgia.

Equity, from Coweta county. Decided by Judge HAMMOND, September Term, 1857.

A bill in equity was filed in the Court below, seeking to recover the sum of $28. The plaintiff stated in his bill, that the debt was contracted by the defendant, Eliza Ashcraft; that her husband Elam S. Ashcraft was insolvent, and that the defendant Eliza had property settled to her separate use, and prayed that the defendant Eliza Ashcraft might be decreed to pay the debt out of that separate estate.

A motion was made to dismiss the bill on the ground that it was beneath the dignity of a Court of Equity. The Court

Price vs. The State.

sustained the motion and dismissed the bill, and to this decision of the Court, the complainants excepted.

POWELL, for plaintiffs in error.

BUCHANAN, contra.

By the Court.-BENNING, J. delivering the opinion.

Is a demand for only $28, beneath the dignity of a Court of Equity, and therefore one not to be entertained by a Court of Equity? The Court below decided that it is.

In this, the Court we think, erred. The fifty-third section of the Judiciary Act of 1799, declares, that "the Superior Courts in the several counties shall exercise the powers of a Court of Equity in all cases where a common law remedy is not adequate," &c. The italicising is mine.

Language so imperative, and so comprehensive, as this, must have the effect to abrogate the rule, excluding from the Court of Chancery, suits, "where the subject matter of the litigation is under the value of 10l."-1. Danl. Ch. Pr. 431. The late Act allowing suits at law, against trustees, &c. will, doubtless, go far to relieve Courts of Equity of such suits as this, in the future.

Judgment reversed.

JAMES PRICE, plaintiff in error, vs. THE STATE, defendant in error.

THE SAME VS. THE SAME.

The 18th section of the 14th Division of the Penal Code, authorizes a demand for trial, to be made at the first, or at the second Term, but not afterwards.