Chancellor v. Milton

40 Ky. 25, 1 B. Mon. 25, 1840 Ky. LEXIS 64

• Court: Court of Appeals of Kentucky
• Decided: October 16, 1840
• Status: Published

Opinion

Chief Justice

Robertson delivered the Opinion of the Court

The verdict and judgment in favor of the mother should, until reversed, be deemed conclusive proof of the fact that she was a free woman when she instituted her suit for freedom, and should be as conclusive in favor of any child borne by her after that time, as a deed of manumission of the same date could possibly be. But though, in a similar suit by her child, the record of her judgment would always be admissible as evidence of the fact that she had been adjudged free, yet, in the absence of any proof that the child was born after the impetration of her writ, her judgment, though prima facie evidence, would nevertheless be inconclusive as to the freedom of such child — because the judgment could not provecer se, or as between strangers, that she had never been a slave, and if she had ever been a slave, her emancipation operating prospectively only, could not liberate her child born 'whilst she was a slave, and which child was therefore born a slave under the operation of the legal rule, partus sequitur ventrem—Pegram vs Isabell, 2 H. & M. Va, Reports, 193.

As there was no proof in this case that the defendant in error, who was plaintiff below, was bom since the institution of the suit in which the mother was adjudged to foe free, the Circuit Judge erred in rejecting evidence tending to show that she had once been a slave, and in instructing the jury that the judgment in her favor was con-elusive proof of the freedom of her child, the plaintiff in the action.

Wherefore, the judgment in this case must be reversed ■and the cause remanded for a new trial.