Miller v. Herbert

by Peter Vivian Daniel

United States Supreme Court

46 U.S. 72

Miller  v.  Herbert

THIS case was brought up, by writ of error, from the Circuit Court of the District of Columbia, for the county of Washington.

The defendants in error filed their petition in the Circuit Court, by which they claimed a right to their freedom, under a deed of manumission executed to them on the 28th of February, 1842, by their owner, George Miller, who was an inhabitant of Washington county, at the date of the deed, and at the time of his death, and on whose estate the plaintiff in error had taken administration.

The petition, setting out the character of the claim of the defendants in error, was in the following words.

To the Honorable, Judges of the Circuit Court of the District of Columbia for Washington County:

The petition of Betsey Herbert and Caroline Herbert humbly showeth, that your petitioners were the salves of George Miller, late of the city of Washington, deceased; that the said decedent, in his lifetime, intending to manumit and set free from slavery your petitioners, caused to be prepared a paper-writing for that purpose, and sent for S. Drury, Esq., a justice of the peace of said county, to take his acknowledgment hereof, and also Charles Bowerman and John Hoover to witness the execution thereof; that on the 28th day of February, 1842, the said justice and the said witnesses came to the house of said George Miller, and the said George Miller did then and there, in the presence of the said witnesses, execute the said paper-writing, and did acknowledge the same before the said justice of the peace; but the said witnesses neglected to sign, or did not understand that they were called upon to sign, the said instrument as witnesses; that the said George Miller retained the said paper-writing in his possession until some short time before his death, when he gave it to your petitioners, with instructions to place it in the hands and follow the directions of Mr. John McLelland, of this city, which your petitioner did; and the said John McLelland, discharging the said trust, placed the said paper-writing in the hands of Joseph H. Bradley, Esq., an attorney of this court, who lodged the said paper in the Orphans' Court of the county aforesaid.

Your petitioners claim that, by the said paper-writing, so executed and delivered, they are entitled to their freedom, and they are advised it was not necessary that the said paper should have been signed by said witnesses, and that the same is a good and operative deed. But if the said deed ought to have been signed by said witnesses, they claim that this court, acting as a court of chancery, will permit the execution thereof to be proved now, and will decree the said deed to be put on record.

The further show that, after the delivery of the said deed to your petitioners, the said George Miller departed this life intestate, and that Henry Miller administered on his estate, and now claims them as part of the personal estate of said George Miller, and they pray that he may be summoned and required to show cause why the paper-writing shall not be admitted to record, and your petitioners declared free.

JOSEPH H. BRADLEY, for petitioners.

The counsel for the respective parties then filed the following agreement:-- Agreement of Counsel.

It is agreed, that if this court shall be of opinion that they would have power, sitting in chancery, to decree the record of the deed, the execution of which was imperfect under the law, because the witnesses did not sign it, 'in such case this court shall have the same power to decree or adjudge the said defect to be rectified as it would if sitting as a court of chancery,' it being distinctly understood that the facts are not admitted, but proof thereof is required, and the defendant is to offer any legal proof to meet the petitioners' case; and the petitioners are to sustain their petition by competent proof. It being the object of this agreement to avoid the expense of a bill in chancery, and to bring all the questions which may arise at law or in equity before the court under the petition.

JOSEPH H. BRADLEY, for Petitioners.

Notes