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Doano vs. Chittenden & Co.

same.

the tax for the same, the mortgagee shall be liable to pay the

Provided that no such sale for taxes, under this act, shall tend to affect the State's title to any property mortgaged or secured thereto."

The proviso, of course, has nothing to do with the subject. I thought it best however to quote the entire section.

Is it not obvious that the owner of property, real or personal, may bona fide sell, mortgage or give his estate, before the lien of the State attaches thereon? and what difference can it make to the State, whether the grantor or grantee, the donor or donee, the mortgagor or mortgagee, pays the tax? It is all the same to the public. It is manifest, that whatever confusion exists upon this subject, there is none in the law itself. It is harmonious and just.

The error in this matter consists in having sold the whole property, when the equity of redemption, or the property subject to the mortgage incumbrance, was all, that could have been sold under the tax execution against James T. Doane, and that, as the testimony shows, was sufficient to have paid the debt many times over. What connection there is between James T. Doane, the mortgagor, and John A. Doane, the purchaser of this valuable property, and claimant in this case, the record does not disclose.

That the public revenue must be collected, all agree. But the power to collect taxes, even in favor of the sovereign State, much less these municipal corporations, is not so omnipotent as counsel imagines. The authority of the government is always tempered with wisdom and justice, as well as mercy. Hence the provision in the Act of 1840, (Cobb, 1072,) giving to the citizen the right to claim property not subject to a tax collector's execution.

I have discussed this question as though the grant of power to this corporation to levy and collect taxes, elevated it to an equality of right with the State itself. I am very far, however, from entertaining such an opinion. On the contrary, I hold that they are amenable to the law for the abuse

Sanders vs. Ward et al.

of their power; and subject to judicial control, the same as individuals, except where exceptions and immunities have been conferred by the sovereign power that brought them into being.

Judgment affirmed.

ELIZABETH SANDERS, caveator, &c., plaintiff in error, vs. B.

F. WARD, et al. propounders, &c., defendants in error.

A will directing the executor, after the payment of the debts of the testator, whick

Fero small, and the estate, independent of the negro property, ample to discharge tiem, to remove the testator's slaves to some free State, to be selected by the exeentor, and there to set thein free, is not contrary to the laws of this State, nor within the Acts of 1801 and 1818, prohibiting manumission in this State, except by the sanction of the Legislature.

Manumission of slaves by will, from Monroe county. Decided by Judge CABINESS, August Term, 1857.

Nathaniel T. Myrick, of Monroe county, on the 21st of June, 1856, executed his last will and testament; and after direction to his executors to pay his debts and funeral expenses, proceeded in the 2d and 3d items as follows:

" Item Second: I devise and bequeath, and require my executors hereinafter named, to remove my servanis Owen, Elizabeth, Joseph, Samuel, William, Flora, George, Harriett and Leonard, to some free State, as my executors may choose and select, as they may deem proper, then and there to manumit and set them, my said named servants, free, to act for themselves, them and their heirs forever.

Item Third: My executors hereinafter named shall purchase in such free State as they may select, a parcel of land. sufficient for the above named servants, with a supply of pro

Sanders vs. Ward et al.

visions, household and kitchen furniture, farming utensils, horses or mules, cattle, hogs and sheep, with the money arising from the sale of my estate, as above directed, and shall pay over any surplus after paying for the removal aforesaid, land and other articles mentioned, to my servant Owen, to be manumitted aforesaid, each one to have and own an equal portion of said land and other articles to be purchased as aforesaid, and also an equal portion of the money remaining after the removal and settlement aforesaid.”

To the probate of this will a caveat was entered by Elizabeth Sanders,

At the trial upon the appeal, the propounder of the will introduced in evidence the said will. To the admission of this paper in evidence the caveators objected on the ground, that all the witnesses to the said will had not been examined, nor had the failure to examine them been accounted for;and that the said paper so offered was illegal and in violation of the Statutes of the State against the manumission of slaves. The Court overruling the objection, admitted the will in evidence, and the caveator excepted.

The jury found for the will, and the caveator, by her counsel, moved the Court for a new trial on the following grounds

Ist. Because the Court erred in allowing the will to be read to the jury, before all the witnesses to it had been examined by the propounders, and before they had shown any reason why all the witnesses were not examined.

2d. Because the Court erred in allowing the paper to be read in evidence to the Jury, it being illegal and in violation of the laws of this State against the manumission of slaves, and against the public policy of this Siate.

3d. Because the Court erred in rejecting the evidence of Vincent T. Lassiter, who testified, that on the evening the testator made his will, on account of signs of stupor and weakness exhibited by testator, he remarked in presence o

of some of the negroes, that the testator never would make a

Sanders vs. Ward et al.

4th. Because the verdict of the jury is against the law and the evidence.

The Court refused to grant a new trial, and caveator excepted, and filed her bill of exceptions, assigning as error all the grounds taken in the motion for a new trial.

Gibson; and HAMMOND, for plaintiff in error.

PINCKARD ; and STEPHENS, contra.

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

In the matter of Nathaniel T. Myrick's testament, we have examined the will, and find there is nothing in it to bring it within any of the exceptional cases decided by this Court; and that the naked question presented for our adjudication is, whether, by the laws of this State, a testator can direct his executor to remove his slaves, after his death, to some free State, for the purpose of acquiring their freedom by the operation of the lex loci, and make provision for them in their new home? Is this forbidden by the Acts of 1801 and 1818?

In support of my opinion in favor of the negative of this proposition, I simply refer to the past decisions of this Court. I will not re-argue a point so often and so elaborately discussed.

My brother Benning refers to three positions occupied by him in the Bledsoe Will Case, and which he insists have never been answered, nor attempted to be answered, and which he deems impregnable.

The first is, that this case comes clearly within the words of the law; secondly, that the policy of preventing domestic emancipation is best and most effectually subserved by probibiting all emancipation whatsoever; and thirdly, that there can be no exterior which is not necessarily preceded by domestic emancipation.

All three of these positions have been incidentally, if not formally, again and again considered by this Court, and we

Sanders vs. Ward et al.

had supposed the argument pretty well exhausted upon each. I

propose, however, briefly to notice each of them in their order.

1. That clauses can be found in one or both of the Acts referred to, broad enough, perhaps, to embrace foreign as well as domestic manumission, may be conceded; but taking the whole of each Act separately, or both together, I demur to the proposition, that extra-territorial emancipation is included in the words of either of these Acts.

What was the object of the Act of 1801? Its title disclosés. It was an “Act prescribing the mode of manumitting slaves in this State!" Cobb, 983. Here, then, we meet with a stumbling block upon the very threshold of the discussion.

Instead of being an Act to prohibit manumission, partial or total, at home or abroad, it is simply an “Act prescribing the mode in which” it shall be done in this State!And right here arises a dilemma. The title of the Act, specifying as it does, that it was passed to prescribe the mode of freeing negroes in this State, and for no other purpose, if it contains any matter different from this, that is, the matter contended for on the other side, namely, a prohibition against foreign emancipation, it is unconstitutional and void. XVIlth sec. I Art. Cons. St. Ga. Cobb, 1114.

But the Act is valid. Read it in the light of its title, and to its title it must be restricted; and the foundation upon

which my brother's first position rests, so far as this Act is concerned, is entirely swept away.

I have said there is no repugnancy between the title and the body of this Act. The first section declares that slaves can only be manumitted by the Legislature. I ask, can it be doubted that any master in the State, notwithstanding this section, has the right to remove to New York, or any other free State, and take his slaves with him, and thus by operation of law, secure to them their freedom? No one has ever expressed or intimated such an opinion. The first section,

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