Stephen, Judge
delivered the opinion of the court.
This case comes up on sundry bills of exception taken in the court below, upon the trial of a petition for freedom filed by the appellee against the appellant in that court. The petition is couched in general terms, and states that the petitioner is a free man, and entitled to be at liberty, but that he is detained in custody and claimed as a slave by the appellant.
To this petition the appellant appeared, and pleaded that the petitioner was not free, as alleged in his said petition. The verdict, and judgment was in favor of the petitioner.
Upon the trial of the cause, the petitioner to prove that he was entitled to his freedom, gave in evidence to the jury, that, in the year 1819, he was the slave of Richard G. Hutton, by whom he was manumitted by deed dated 9th November 1819, the said manumission to commence and taire eiFect, on the 1st of January 1827. The petitioner also proved, that at the time his freedom commenced, according to the provisions of the deed, he was under the age of 45 years, and able to gain a sufficient livelihood, and maintenance, and was going at large and acting as a free man, until the appellee as the administrator of the said Richard G. Hutton took possession of him, and returned an inventory in which he was included as a part of said Hutton's personal estate. Upon this proof of title to freedom, the petitioner rested his case. The defendant, for the purpose of proving that the petitioner was not entitled to his freedom, proved that .said Hutton in the year 1819, and for some time before that period, was in insolvent [104]*104circumstances, being indebted to an amount exceeding the value of all his property of every description, including the negroes mentioned in the aforegoing instrument of writing, and that he continued to be indebted to the extent of insolvency, until the time of his death, which happened in the year 1832. The defendant also proved that the negroes mentioned in said deed of manumission, always remained in the-possession' of said Hutton to the period of his death, and afterwards remained in the possession of his widow for several days, until they were discharged by her, when they went at large, until the defendant as administrator took possession of them., The defendant proved, that he was a creditor of said1 Hutton at the time of his death, and at the time the deed of manumission took effect, though not at the date thereof, and that said Hutton did not leave any property,-out of which he could obtain satisfaction for said claim, other than the said negroes. Upon this evidence the defendant relied, for the purpose of proving that said deed was made with a fraudulent-intent, and operated to the prejudice of creditors, and was-therefore void. The defendant also proved, that he had returned an inventory to the Orphan’s Court, in which the petitioner was included as part of the personal estate of said Hutton, which had been duly recorded.
Upon this evidence, the counsel for the petitioner prayed the court to instruct the jury, that the defendant was not, as' administrator of said Hutton, entitled to hold said petitioner as a slave, which prayer was granted by the court. The defendant then contended, (after proving that his claim had been passed by the Orphan’s court,) that as a creditor of said Hatton, he had a right to hold said petitioner in slavery, without further judicial proceedings having been had in relation to his said claim. But the court instructed the jury, that the mere proof of the defendant being a creditor, and the passage of his claim by the Orphan’s Court, without further judicial proceedings in relation thereto, did not authorize the defendant to hold the petitioner in slavery. The defendant then prayed the court to instruct the jury, that although he might [105]*105not as administrator, or creditor, be entitled to hold the petitioner in slavery, yet that he had a right to take such petitioner, and hold, or otherwise dispose of him, so as to raise by his services or sale, a sufficient sum of money to satisfy his debt, which instruction the court also refused to give. Two other exceptions were taken by the defendant in the course of the trial, but it is not deemed necessary, particularly to advert to the proof offered in those bills of exceptions, as according to the principles which we think ought to govern in the decision of questions of this nature, the court were clearly right in the opinions expressed in both of them, concerning the sufficiency of Hutton's estate, to pay his debts.
By the act of 1796, ch. 67, sec. 29, a right is given to manumit slaves, of the description therein mentioned, by deed, so that such manumission be not in prejudice of creditors. We do not deem it necessary to examine the various adjudications which were referred to in the course of the argument, in relation to deeds or conveyances deemed fraudulent under the statute of Elizabeth, or to ascertain whether this deed would be considered fraudulent as to creditors, according to the principles of the common law, upon the evidence given to the jury in this cause. Is it sufficient to say, that the act of Assembly granting the power to manumit, has furnished the standard, by which their legal validity is to be tested; that rule is, that the deed of manumission shall not be operative, and available, if made to the prejudice of creditors. A deed of manumission being therefore inoperative to pass a. title to freedom, if made to the prejudice of creditors, the-question necessarily arises, on whom does the law throw the burden of proof in such cases. Is it the duty of the petitioner to prove negatively, that the deed under which he claims title, will not have that effect, or does the onus probandi, rest upon the creditors, for whose benefit and protection, the clause was introduced into the law ? This we consider not to be a question of difficult solution, in the case of manumission by deed, in the absence of all authority upon the subject. Yet we are happy to find, that this very question, has engaged the alten» [106]*106tion of the Supreme Court of the United States, and has been put to rest.
We hold that in. the case of a manumission by deed, the onus probandi, is upon the creditor. That the deed is operative and effectual to give freedom to the slave, unless the rights of creditors are injured by it, and that it is not incumbent on the slave to prove, as a condition precedent to effective manumission,, that the residue of his master’s property was-sufficient for the payment of his debts. We think that it never was the intention of the Legislature, when they passed the law authorizing the manumission of slaves by deed, to stay, or suspend the operation of such grant of freedom, until it had been ascertained, as a condition precedent, that it would not operate to the prejudice of creditors. The 29th section of the act says, that a person possessing a slave of the description there mentioned, may manumit him by deed, and that such manumission, may be made to take effect in futuro, so that such deed be not in prejudice of creditors. But was it ever supposed that before such deed could take effect, the manumitter must prove either judicially, or otherwise, that he-was perfectly solvent, and able to pay all his debts, without resorting to the manumitted slave for that purpose.
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Stephen, Judge
delivered the opinion of the court.
This case comes up on sundry bills of exception taken in the court below, upon the trial of a petition for freedom filed by the appellee against the appellant in that court. The petition is couched in general terms, and states that the petitioner is a free man, and entitled to be at liberty, but that he is detained in custody and claimed as a slave by the appellant.
To this petition the appellant appeared, and pleaded that the petitioner was not free, as alleged in his said petition. The verdict, and judgment was in favor of the petitioner.
Upon the trial of the cause, the petitioner to prove that he was entitled to his freedom, gave in evidence to the jury, that, in the year 1819, he was the slave of Richard G. Hutton, by whom he was manumitted by deed dated 9th November 1819, the said manumission to commence and taire eiFect, on the 1st of January 1827. The petitioner also proved, that at the time his freedom commenced, according to the provisions of the deed, he was under the age of 45 years, and able to gain a sufficient livelihood, and maintenance, and was going at large and acting as a free man, until the appellee as the administrator of the said Richard G. Hutton took possession of him, and returned an inventory in which he was included as a part of said Hutton's personal estate. Upon this proof of title to freedom, the petitioner rested his case. The defendant, for the purpose of proving that the petitioner was not entitled to his freedom, proved that .said Hutton in the year 1819, and for some time before that period, was in insolvent [104]*104circumstances, being indebted to an amount exceeding the value of all his property of every description, including the negroes mentioned in the aforegoing instrument of writing, and that he continued to be indebted to the extent of insolvency, until the time of his death, which happened in the year 1832. The defendant also proved that the negroes mentioned in said deed of manumission, always remained in the-possession' of said Hutton to the period of his death, and afterwards remained in the possession of his widow for several days, until they were discharged by her, when they went at large, until the defendant as administrator took possession of them., The defendant proved, that he was a creditor of said1 Hutton at the time of his death, and at the time the deed of manumission took effect, though not at the date thereof, and that said Hutton did not leave any property,-out of which he could obtain satisfaction for said claim, other than the said negroes. Upon this evidence the defendant relied, for the purpose of proving that said deed was made with a fraudulent-intent, and operated to the prejudice of creditors, and was-therefore void. The defendant also proved, that he had returned an inventory to the Orphan’s Court, in which the petitioner was included as part of the personal estate of said Hutton, which had been duly recorded.
Upon this evidence, the counsel for the petitioner prayed the court to instruct the jury, that the defendant was not, as' administrator of said Hutton, entitled to hold said petitioner as a slave, which prayer was granted by the court. The defendant then contended, (after proving that his claim had been passed by the Orphan’s court,) that as a creditor of said Hatton, he had a right to hold said petitioner in slavery, without further judicial proceedings having been had in relation to his said claim. But the court instructed the jury, that the mere proof of the defendant being a creditor, and the passage of his claim by the Orphan’s Court, without further judicial proceedings in relation thereto, did not authorize the defendant to hold the petitioner in slavery. The defendant then prayed the court to instruct the jury, that although he might [105]*105not as administrator, or creditor, be entitled to hold the petitioner in slavery, yet that he had a right to take such petitioner, and hold, or otherwise dispose of him, so as to raise by his services or sale, a sufficient sum of money to satisfy his debt, which instruction the court also refused to give. Two other exceptions were taken by the defendant in the course of the trial, but it is not deemed necessary, particularly to advert to the proof offered in those bills of exceptions, as according to the principles which we think ought to govern in the decision of questions of this nature, the court were clearly right in the opinions expressed in both of them, concerning the sufficiency of Hutton's estate, to pay his debts.
By the act of 1796, ch. 67, sec. 29, a right is given to manumit slaves, of the description therein mentioned, by deed, so that such manumission be not in prejudice of creditors. We do not deem it necessary to examine the various adjudications which were referred to in the course of the argument, in relation to deeds or conveyances deemed fraudulent under the statute of Elizabeth, or to ascertain whether this deed would be considered fraudulent as to creditors, according to the principles of the common law, upon the evidence given to the jury in this cause. Is it sufficient to say, that the act of Assembly granting the power to manumit, has furnished the standard, by which their legal validity is to be tested; that rule is, that the deed of manumission shall not be operative, and available, if made to the prejudice of creditors. A deed of manumission being therefore inoperative to pass a. title to freedom, if made to the prejudice of creditors, the-question necessarily arises, on whom does the law throw the burden of proof in such cases. Is it the duty of the petitioner to prove negatively, that the deed under which he claims title, will not have that effect, or does the onus probandi, rest upon the creditors, for whose benefit and protection, the clause was introduced into the law ? This we consider not to be a question of difficult solution, in the case of manumission by deed, in the absence of all authority upon the subject. Yet we are happy to find, that this very question, has engaged the alten» [106]*106tion of the Supreme Court of the United States, and has been put to rest.
We hold that in. the case of a manumission by deed, the onus probandi, is upon the creditor. That the deed is operative and effectual to give freedom to the slave, unless the rights of creditors are injured by it, and that it is not incumbent on the slave to prove, as a condition precedent to effective manumission,, that the residue of his master’s property was-sufficient for the payment of his debts. We think that it never was the intention of the Legislature, when they passed the law authorizing the manumission of slaves by deed, to stay, or suspend the operation of such grant of freedom, until it had been ascertained, as a condition precedent, that it would not operate to the prejudice of creditors. The 29th section of the act says, that a person possessing a slave of the description there mentioned, may manumit him by deed, and that such manumission, may be made to take effect in futuro, so that such deed be not in prejudice of creditors. But was it ever supposed that before such deed could take effect, the manumitter must prove either judicially, or otherwise, that he-was perfectly solvent, and able to pay all his debts, without resorting to the manumitted slave for that purpose. We conceive that the right of creditors in such a case, would be sufficiently protected, by subjecting the manumitted slaves to the payment of his debts, when in a course of judicial proceedings, it should be made to appear that the residue of his property was not sufficient for that purpose. Such a deed will therefore operate prima facie to confer freedom, liable however to be defeated, if proved to have been made to the prejudice of creditors. We think the court below, were therefore right in rejecting the' prayers made by the defendant in his several bills of exceptions, so far as the same related to the sufficiency or insufficiency of Hutton’s estate for the payment of his debts.
Upon the trial of this petition for freedom, the proper parties were not before the court to try the question, whether the deed of manumission had been, made to the prejudice off [107]*107creditors. The petitioner we think, was entitled to the assistance of the heir at law, or person holding the real estate, in faking an account of the amount thereof, before it could be legally, and judicially ascertained, that the deceased died insolvent, without subjecting the manumitted slave to the payment of his debts. By a statute of Maryland, the real estate of a deceased debtor, is made subject to the payment of his debts, in case of the insufficiency of the personal property for that purpose; but this court have always held that before a decree could pass for the sale of the real estate, the executor, or person representing the personal estate, must be made a party, for the purpose of proving that the personal estate had been exhausted. Nor was it necessary for the protection of the rights of creditors, that, that question should have been tried upon such a petition. The judgment in that case, would not have concluded the rights of the creditors, in any future suit, which they might institute in a court of Equity for the recovery of their claims. The judgment would not have concluded the right of the creditors from showing, in a proceeding in Equity, to which the manumitted slaves, the executors, and all persons interested, might he made parties, that the estate of the master was insufficient for the payment of his debts, without resorting to the manumitted slaves for that purpose, and upon proof of that fact, the court would decree, that the manumission had been made in prejudice of creditors, and subjeet the slaves to the payment of debts, cither by sale for life, or for a term of years, according as the one, or the other, might he requisite to pay the creditor. According to our construction of the act of 1796, ch. 67, the law charges the whole of the manumitter’s property with the payment of his debts, in favour of his manumitted slaves, because the act of manumission is to he effectual, if not done in prejudice of creditors; which plainly, and necessarily implies, that the residue of his property is first to be appropriated to the payment of his debts, before the manumitted slaves can be made liable therefor. We have said, that we did not deem it necessary to examine the various adjudications [108]*108referred to in the argument, respecting deeds or conveyances held to be fraudulent, and void against creditors under the statute of Elizabeth, or at common law. We will however remark, that according to the decision of this court in the case of Dorsey vs. Smithson, 6 Harr. & Johns. 61, although the deed of manumission should be considered fraudulent and void against creditors, yet that it is binding on the donor and his legal representatives, and is not assets in the hands of his administrator for the payment of his debts. This case also proves, that the administrator would not be entitled to hold the petitioner in his character of creditor, but must resort to his legal remedy for the satisfaction of his claim. That remedy, as already remarked, we think must be in a court of Equity, where the whole subject of assets can be fully investigated, the rights of the respective parties protected, and justice fairly and impartially administered to all concerned. Upon the whole we are of opinion, that in the case now before this court, the court below determined correctly, that in that suit, the question whether the estate of the deceased was sufficient to pay his debts, could not be legally decided, so as to bar, or deprive the petitioners of their right to freedom; and that the proper remedy of a creditor in such a case, is by a bill in equity, where the manumitted slaves, and all proper parties, can be brought before the court, and where an account may be taken of all the property of the deceased, both real and personal, and if that should be found inadequate to the payment of his debts, the manumitted slaves may be decreed to be sold for that purpose, either for life, or for a term of years, as circumstances, or the nature of the case might require. But we think the court below erred in granting the prayer of the petitioner in the first bill of exceptions, without referring, or submitting to the jury, to whom it properly belonged to find the facts, whether the petitioner was under the age of forty-five years, and able to work and gain a sufficient livelihood, and maintenance.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.