[Le Grand vs. Darnall.]

of the purchase money. Le Grand was thereupon put into possession of the land. At the time the contract was made, the parties believed the title to the land to be unquestionable. Soon afterwards, however, doubts were suggested to Darnall, and he communicated them to Le Grand, and they entered into a supplementary and conditional agreement, without varying in substance the original contract. Darnall was not more than ten or eleven years of age at the time of the death of his father; and, by a law of the state of Maryland, it is provided that no manumission by last will and testament shall be effectual to give freedom to any slave, unless the said slave shall be under the age of forty-five years, and able to work and gain a sufficient maintenance and livelihood at the time the freedom intended to be given shall take place.

A decision had lately been made by the Court of Appeals of Maryland, in the case of Hamilton vs. Cragg, that an infant (whose age did not exceed two years when his title to freedom commenced) was not able to work and gain a sufficient maintenance and livelihood, and was therefore adjudged to be a slave. This decision of the highest Court of law in the state gave rise to doubts concerning the capability of the appellee to make a good title to the land which he had sold to the appellant. Darnall deposited the amount of the first payment, that is to say, three thousand dollars, in the hands of Benjamin Tucker, of Philadelphia, to be held, with the consent of the appellant, subject to the result of an examination into the title. In consequence of the decision of the Court of Appeals of Maryland, the heir at law of Bennett Darnall, the testator, made claim to the land, and threatened to commence suit for the recovery of it. Le Grand, being alarmed about the title, refused to make any further payment; and an action was commenced against him, and judgment recovered for the second payment. To prevent an execution, and to ascertain, under all the circumstances of the case, whether the appellee could make a good title to the land which he had sold to him, he filed his bill of complaint in equity, in [*669 the Circuit Court, stating the circumstances, and obtained an injunction against any further proceedings at law. The appellee put in his answer, admitting all the facts stated in the bill, except that of his inability to gain a maintenance and livelihood by labour, when his right to freedom commenced. The case was submitted to the Court upon the bill, answer, exhibits, and proof which had been taken; and the Court, upon due consideration, ordered the injunction to be dissolved, and decreed the bill to be dismissed. From this decree an appeal was taken to this Court, and the cause is now to be finally decided.

There is one question only to be discussed. If the appellee, at the time of the death of the testator, was entitled to his freedom under the will and deeds of manumission before mentioned, then his title to the land sold was unquestionable. His claim to freedom, under the instruments above referred to, depends upon a just con

[Le Grand vs. Darnall.]

struction of the act of the legislature of Maryland, passed in the year 1796, ch. 47, sec. 13.

The words of the act are these: "That all persons capable in law to make a valid will and testament, may grant freedom to, and effect the manumission of any slave or slaves belonging to such person or persons, by his, her, or their last will and testament; and such manumission of any slave or slaves may be made to take effect at the death of the testator or testators, or at such other period as may be limited in such last will and testament; provided, always, that no manumission by last will and testament shall be effectual to give freedom to any slave or slaves, if the same shall be to prejudice of creditors; nor unless the said slave or slaves shall be under the age of forty-five years, and able to work and gain a sufficient maintenance and livelihood at the time the freedom given shall commence." The time of the freedom of the appellee commenced immediately after the death of the testator, when, according to the evidence, he was about eleven years old. Four respectable witnesses of the neighbourhood were examined. They all agree in their testimony, that Nicholas was well grown, healthy, and intelligent, and of good bodily and mental capacity: that he and *his brother Henry could readily have found employment, *670] either as house servant boys, or on a farm, or as apprentices; and that they were able to work and gain a livelihood. The testator devised to each of them real and personal estate to a considerable amount. They had guardians appointed, were well educated, and Nicholas is now living in affluence. Experience has proved that he was able to work, and gain a sufficient maintenance aud livelihood. No doubt as to the fact has ever been entertained by any who know him. Of course, he was capable in law to sell and dispose of the whole or any part of his estate, and to execute the necessary instruments of writing to convey a sufficient title to the purchase.

The Court of Appeals of Maryland, in the case of Hale vs. Mullin, decided, that a devise of property real or personal by a master to his slave, entitles the slave to his freedom by necessary implication. This Court entertains the same opinion.

It is not the inclination of this Court to express any opinion as to the correctness of the decision of the Court of Appeals of Maryland, in the case of Hamilton vs. Cragg. It is unnecessary in reference to the case under consideration.

The decree of the Circuit Court is affirmed; and by consent of parties, without costs.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of Maryland, and was argued by counsel. On consideration whereof, it is considered, ordered, and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, without costs.

*THE BANK OF COLUMBIA, PLAINTIFFS IN ERROR, VS. GEORGE SWEENEY, DEFENDANT IN ERROR.

The act of the legislature of Maryland of 1793, incorporating the Bank of Columbia, one of the sections of which gives to the Bank a summary proceeding against debtors to the .bank, did not intend to interfere with any legal defence against the claim of the bank the party might have. It does not prescribe the nature of that defence, or deprive him of any which might have been used, had the action been commenced in the usual way.

THIS was a writ of error to the Circuit Court for the county of Washington. The same case was before this Court at January term, 1828, on a motion for a mandamus. 1 Peters, 567.

Upon issue being joined in the Circuit Court, on the plea of the statute of limitations, that Court decided, that the defendant was entitled to avail himself of the statute against the claims of the plaintiffs, proceeding under the provisions of their charter, which gives them summary process against their debtors.

The case was submitted to this Court on a written argument, by Mr. Jones and Mr. Key. The plaintiffs below prosecuted this writ of error, and sought to reverse the judgment of the Circuit Court.

Mr. Chief Justice MARSHALL delivered the opinion of the Court. In 1793 the state of Maryland passed an act incorporating the Bank of Columbia, which contains the following section: "And whereas, it is absolutely necessary that debts due to the said bank should be punctually paid, to enable the directors to calculate with certainty and precision on meeting the demands that may be made upon them. Be it enacted, that whenever any person or persons are endebted to the said bank for moneys borrowed by them, or for bonds, bills, or notes given or endorsed by them, with an express consent in writing that they may be made negotiable at the [*672 said bank, and shall refuse or neglect to make payment at the time the same becomes due, the president shall cause a demand in writing on the person of the said delinquent or delinquents, having consented, as aforesaid, or if not to be found, have the same left at his place of abode; and if the money so due shall not be paid within ten days after such demand made, or notice left at his place of abode as aforesaid, it shall and may be lawful for the president, at his election, to write to the clerk of the General Court, or of the county in which the said delinquent or delinquents may reside, or did, at the time he or they contracted the debt, reside, and send to the said clerk the bond, bill, or note due, with proof of the demand made as aforesaid, and order the said clerk to issue capias ad satisfaciendum, fieri facias, or attachment by way of execution, on which the debt and costs may be levied, by selling the property of the defendant for the sum or sums of money mentioned in

[Bank of Columbia vs. Sweeney.]

the said bond, bill, or note; and the clerk of the General Court, and the clerks of the several County Courts, are hereby respectively required to issue such execution or executions, which shall be made returnable to the Court, whose clerk shall issue the same, which shall first sit after the isuing thereof, and shall be as valid, and as effectual in law, to all intents and purposes, as if the same had issued on judgment regularly obtained in the ordinary course of proceeding in the said Court, and such execution or executions shall not be liable to be stayed or delayed by any supersedeas, writ of error, appeal, or injunction from the chancellor; provided, always, that before any execution shall issue as aforesaid, the president of the bank shall make an oath, (or affirmation if he shall be of such religious society as allowed by this state to make affirmation,) ascertaining whether the whole, or what part of the debt due to the bank on the said bond, bill, or note, is due; which oath or affirmation shall be filed in the office of the clerk of the Court from which the execution shall issue; and if the defendant shall dispute the whole or any part of the said debt, on the return of the execution, the Court before whom it is returned shall and may order an issue to be joined, and trial to be had in the same Court at which *673] the return is made; and shall make such other proceedings that justice may be done in the speediest manner."

In pursuance of these provisions of the act, a capias ad satisfaciendum was issued by the bank, against the defendant, on a promissory note, signed by him and endorsed to the bank. The defendant appeared in Court, and claimed the right allowed by the act to dispute the debt; upon which the Court ordered an issue to be made up between the parties.

The plaintiff offered to file a declaration, tendering an issue on a wager, to which the defendant objected, and the Court sustained the objection. A declaration in assumpsit was then filed, to which the defendant pleaded the statute of limitations.

On the trial, the defendant moved the Court to instruct the jury, that if they should be satisfied by the evidence, that three years had elapsed, between the expiration of the time limited for the payment of the said note, and the issuing of the execution by the clerk in this cause, upon the letter and paper sent by the president of the bank, and given in evidence; they ought to find a verdict for the defendant, on the issue joined on the plea of the statute of limitations.

The Court gave the instruction required, and the jury found a verdict for the defendant. The counsel for the plaintiff excepted to the opinion, and has brought the cause into this Court by writ

or error.

The execution being the first process under this extraordinary act, its emanation must be equivalent, so far as respects the bar created by the act of limitations, to suing out original process in a suit commenced in the usual way. There is, therefore, no error in that part of the instruction which relates to the period to which

[Bank of Columbia vs. Sweeney.]

time was to be calculated; and the only inquiry is, whether the defendant could avail himself of the act of limitations.

The great object of the incorporating act appears to have been to give the bank the most expeditious remedy possible, for the collection of the money due to it. The affidavit of the president supplies the place of a judgment, and those proceedings after judgment, which are followed for the purposes of justice, but [*674 may be used for mere delay, are taken away. The execution "shall not be liable to be stayed or delayed by any supersedeas, writ of error, appeal, or injunction from the chancellor." But the law did not intend, by this summary process, to deprive the debtor of all defence. Although all delay was cut off, he was permitted, on the return of the execution, to dispute the whole, or any part of the debt. But while the law allows him to dispute the debt, it still guards against delay. An issue is to be made up immediately, and tried at the same term. While the law thus carefully guards against procrastination, it does not interfere with the defence which the party is at liberty to set up. It does not prescribe the nature of that defence, or deprive him of any which might have been used, had the action been commenced in the ordinary way. Had the Bank of Columbia proceeded in the common course of law, the defendant could have pleaded the act of limitations, in bar of the action. If we are correct in saying, that the object of the section of the incorporating act which has been recited, was expedition, not the ademption of legal defences; we think this a mode of disputing the debt, of which he might still avail himself.

There is no error in the judgment of the Circuit Court, and it is affirmed with costs.

This cause came on to be heard on a transcript of the record from the Circuit Court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof, it is considered, ordered, and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.

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