Potts Ex Rel. Potts v. Carls

3 Del. 86

• Court: Superior Court of Delaware
• Decided: July 5, 1840
• Status: Published

Opinion

The Court

said the terms of the law were very strong to show that the petitioner must be actually held and detained by his master to entitle him to the remedy under the act of assembly; but, in practice, the remedy had been extended to cases where the petitioner was out of the possession of the master. In such cases the court has ordered security to be given for the wages of the slave pending his petition; and has sometimes ordered the master, when the slave was in his possession, and it was apprehended that he might be sent off before judgment, to enter into recognizance for the forthcoming of the slave.

.It is obviously unjust to permit this petitioner to play fast and loose at his master’s expense. The master is in any event bound to pay the costs of this prooceeding; the slave has absconded; it is unreasonable that he should put his master to the expense of defending this petition for his freedom, indeed to all the costs of the proceeding, and take the benefit of the decision if it should be for him; whilst he refuses to put himself in the power of the master, or of the law; or to abide by the decision of the court, if it should be against him.

Laws, for the motion. Frame, contra.

Order made that the nest friend enter into recognizance in $300, for the appearance of the petitioner; and that proceedings be stayed until such recognizance be given.