Warren and Slingerland, Overseers of the Poor of the town of Bethelem, against Brooks

Warren and Slingerland, Overseers of the Poor of the town of Bethelem, against Brooks. NEW YORK, May, 1827. d. owned a agreed to manumit ,on„ years’ faithful service. He g^ s°to bÜ f1;0 manumití ted the slave before that time had expired, without obtaining a certificate of the slave’s ability to maintain himself, pursuant to the statute, (sess. 40, ch. 137, s. 7 ;) and he being in fact unable to maintain himself at the time of manumission. The slave afterwards became chargeable to the town of Bethlehem, whose overseers of the poor expended money, upon an order of maintenance, for his support. Held, that B. was liable to the overseers, in an action for such money, upon the statute, (sess. 40, ch. 137. s. 7.) Held, also, that no notice to B. to maintain the pauper was necessary, previous to the expenditure. Held, also, that no adjudication of two justices, as io the pauper's place of settlement, was necessary. But that the manumitting master is liable, upon the statute, to any town to which the slave may become a charge. The settlement of a slave follows that of his master. Per Woodworth, J. If he gain a settlement in his own right, the town to which he becomes chargeable may elect to remove him to that place of settlement; or charge his former master. Per Wood-worth, J. It is proper and necessary that an order of maintenance should be obtained, in order to charge the master. Assumpsit on the statute, (sess. 40, ch. 137, s. 7,) for money paid for the defendant’s use, in the support and maintenance of a negro man named Christian Holland, ° > who had become a charge to the town of Bethelem. ' The cause was tried at the Albany circuit, 1826, before ¡DuER, C. Judge. ’ ° At the trial, the following facts were in evidence: On the. 22d.ofi June, 1816, Gerrit P. Van Wie, by bill of sale, sold and’ assigned the negro to Isaac Benniston; who on the same day executed á writing, by which he covenanted, that-itL'case the slave would s'éryp. him faithfully, he would manumit him . at the..expiratlon of 6 1-2 years. On the back of the”bü-l pf 'sale, Benniston indorsed an assignment .of all his.Eight áñd title, Without warranty, to the defendant.- The..'indorsement vwa's: -.dated the -23d of Becember, 1819;’ áád; stated.that the slave .’promised to live *with the defendant’3-years.- .’Oñ ’the'-;Í6‘th'of .IJéqember, 1820, the defendant, by writing under/hishand and’ seal, in consideration of $50,-manumitted thfe slave;'”and discharged him from the service to which the defendant was entitled, by virtue of the transfer from ’ Benniston. In June, 1823, Christian, being in bad heath, and unable to support himself, was .examined before two justices, who from time to time, gave orders on the ovérseers of the poor of Bethlehem to pay the accounts exhibited for his maintenance and support; which were paid by them acctirdingly. They amounted to about $160. The balance of proof was, that the slave was unable to support himself, at the time he was manumitted. The judge charged that Christian was legally a slave at the time of the manumission; and the defendant, not hav ing obtained a certificate from the overseers, of his slave’s ability to support himself, &c., pursuant to the statute, was responsible in this action, if Christian was, in fact, not of sufficient ability to support himself when he was manumitted. That this was the only question for them to try; the reasonableness of the expenditures not being questioned. Verdict for the plaintiffs, 6 cents. T. Van Vechten & E. Baldwin, for the plaintiffs, moved for a new trial. They contended that Christian was the slave of Brooks at the tithe of the manumission. Christian might have enforced Benniston’s covenant had its conditions been complied with. 7 John. Rep. 324; 1 Cowen’s Rep. 127. But without such compliance, it was of no binding force. The defendant acquired all the rights, and was subject to all the liabilities of Denniston; and he manumitted before the conditions of Denniston’s covenant were performed. Had Denniston done this, is there a doubt he would have been liable ? The slave might never have complied with those conditions. This action is brought upon the 7th section of the statute, (sess. 40, ch. 137.) The suit is given against the ^person manumitting the slave. The defendant is within the words of the act. Ho notice to provide for Christian was necessary. The defendant had lost all right to control him, even so far as maintenance was concerned. The jury have found against Christian’s ability to maintain himself; and were bound to give full damages. J. V. N. Yates, contra. The support was furnished wthout any adjudication of two justices as to the place of settlement. 4 Cowen, 137; 7 John. 89. The town calls on a third party to support the pauper. An adjudication was therefore necessary; though it seems to be otherwise where a town supports its own paupers. 1 Cowen, 205. An adjudication would be necessary to remove a slave to his master’s residence, within the statute, (1 R. L. 292, s. 33.) The negro was not Brooks’ slave; or, if otherwise, there was evidence on both sides as to the slave’s ability to maintain himself when he was manumitted. The jury have virtually found in favor of that ability by giving nominal damages; and the court will not disturb their verdict. 3 Jonn. Rep. 170, id. 271. [MAJORITY — Curia, per Woodworth, J.] Curia, per Woodworth, J. The first question that arises is, whether Christian was the slave of Brooks at the time of manumission. He certainly was, unless the stipulation made by Denniston, to manumit in six years and an half, changed that relation. The agreement was conditional. If the terms had been performed, the slave might have enforced a compliance. Until performance, the rights of the parties remained precisely as they were before the con- ‘ , J , ditional agreement was made. The slave never has performed; and consequently the arrangement became inop©native. I admit that the defendant’s title was subject to this condition. It would have been conclusive against him, equally as against Denniston, on performance; but that never took place. Besides, the act of manumission in consideration of $50, paid by the slave, was of itself *an abandonment of the conditional agreement. His freedom was not in consequence of having performed the condition, but of a pecuniary consideration. The case of Kittletas v. Fleet, (7 John. 324,) is in point. There the written promise to;manumit was considered a conditional manumission only; and that the slave might avail himself of it if the condition was fulfilled; otherwise, not. The liability of the defendant arises, on the 7th section of the act relative to slaves and servants, (sess. 40, ch. 137, March 31, 1817.) This section declares that the person manumitting a slave shall be liable for his maintenance, in case he becomes a charge to any city or town; and that the overseers of the poor may, from time to time, recover the amount of the money expended for maintenance, from the person by whom the slave was manumitted, by action on the case for money expended for his use. It is contended by the defendant, that there must be a previous adjudication, before the master is liable. The statute does not prescribe the form of proceeding. It seems to me, the right of the plaintiffs is made out, if the person manumitted was a slave, unable to support himself at the time of manumission, had become a charge on the town, and the expenditures were reasonable. The remedy given is not derived from the poor laws; but depends on this statute. An adjudication of settlement would be useless ; the settlement of a slave would follow that of the master - but it is immaterial in this case, where the settlement of the former master was. The claim does not rest on this ground; but on the statute which gives the action in case the slave becomes a charge. It is not like the cases under the act for the relief of the poor, where one town prefers a claim against another town, under the 16th section of that act, or where the claim is by a town against the county, under the 25 th section. (7 John. 89. 4 Cowen, 137.) There an adjudication as to settlement is necessary before any liability is incurred. It is in consequence of the settlement, or because no settlement has been gained, that the claim in such cases is founded. An adjudication, there-' fore, becomes a pre-requisite. If there *had been no other act on the subject, than the act for the settlement and relief of the poor, would the plaintiffs, under that act, have any remedy against the defendant? I apprehend not. The 33d section declares, that it shall be lawful to remove any slave, who shall have left his master; or shall have wandered from town to town, to the place of settlement of his master. This does not apply; because Christian, at the time he became a charge, was not a slave, but a freeman. His master’s settlement, therefore, was not his. Even if he had been a slave, all that this section authorizes is, to remove him to his master’s place of settlement. I do not perceive, therefore, that the question of settlement is at all bi’ought into view upon the case presented, as founded on the act of 1817. Suppose the slave in this case had, after his manumission, gained a settlement in another town, then, undoubtedly, the town of Bethlehem might have removed him, under the poor act, if they had elected so to do ; but they were not bound to pursue that remedy. They might elect to call upon the master for the necessary maintenance under the 7th section. What is required by that section ? If the slave is not of sufficient ability to provide for his support at the time of manumission, the master shall be liable in case the slave becomes a charge to any city or town. Whether he was of sufficient ability to support himself, and whether he became a charge, are questions to be tried in the action against the master. Any formal adjudication by two justices, that Christian had become a charge, and that the defendant was bound to pay, could not affect him. He was not amenable to such a jurisdiction, and would be at liberty to disregard it. The act does not prescribe, nor does it contemplate such a course, as necessary to render the defendant liable. So far as to justify the overseers in relation to the duty they owed the town, it was proper that they be authorized to make advances ; and therefore the proceedings' in this case were similar, in that respect, to those where a pauper under the poor act applies for relief. On ‘the 28th June, 1823, Christian was examined before two jusitces. He declared he was unable to support *himself. Subsequent to this, at different times, the justices directed the overseers to pay certain accounts for maintenance, and they were paid accordingly. This was necessary to be done; otherwise the overseers could not claim an allowance for the sums advanced in adjusting their accounts. If the examination of the circumstances from which to determine whether the applicant is a charge and entitled to relief, is termed an adjudication, its operation is only to legalize the acts of the overseers, as between them and the town. It seems that all necessary previous steps were taken before relief was afforded. ft may be further observed, that itnder the 7th section, if the slave who has been liberated, being unable to support himself at the time, should afterwards become a charge, it would be the duty of the overseers of the poor of any town where he should happen to be, to relieve him. For this, they might, and ought to- call on the former master. In case of his inability to answer, I apprehend the town affording relief would not be remediless. If the person manumitted had gained a settlement, he might be removed to it. If he had derived no settlement, the .case would fall within the 25th section of the poor act. Then, indeed, an adjudication as to settlement, would be requisite, in order to constitute a county charge. On the whole, I am of opinion that Christian was the defendant’s slave until the manumission: that he was unable to Support himself, and became a charge to the town of Bethlehem; that no adjudication of settlement was necessary, and that the defendant is liable for the money advanced. A new trial must be granted, with costs to abide the - ' event. New trial granted.