Winn vs. Sam Martin, (of color.)

of going to Liberia, but really for the purpose of settling in a Northern State, he required that any of them wishing to be free should be delivered "to the colonization society to be transported to Liberia." Their freedom was not his sole nor his chief object. His chief object was to promote the scheme of colonization, which many then regarded as giving promise of a peaceful and happy solution of the problem of African slavery. The object of the society was to colonize Liberia with negroes from the United States. The testator's object was to furnish Liberian colonists. Sam, in going to Liberia with a concealed design to return immediately to the United States, did not comply with the will of the testator, but attempted to take an unfair advantage of his benevolent purpose, and committed a fraud upon the colonization society instead of promoting its success according to the testator's intention.

If he had gone to Liberia in good faith, to dwell there, and had become a colonist and thus acquired a right to freedom, we do not suppose that he would have torfeited that right by afterward leaving the colony. But we need not decide that question now.

We do not regard the cases of John vs. Moreman et al, 8 B. Mon., 101, and Graham's Ex'r. vs. Sam et al, 7 B. Mon., 405, cited by appellee's counsel, as containing anything in conflict with this opinion. In the former case it was held that a slave, entitled to his freedom upon condition that he should go to Liberia, was entitled to the value of his services from the time of his electing to go. In the latter case the testator declared that if, within ten years, any of his slaves should "become willing and give themselves up to embark for Liberia, I do hereby emancipate all such for that purpose." One of them, a female, within ten years, elected to go to Liberia; and it was held that her right to freedom related back to the death of the testator, so as to give freedom to her children born in the meantime. In those cases it was assumed that there was an election, in good faith, to comply with the condition on which the right to freedom depended. Sam's conduct leaves no room for such an assumption in this case.

Winn vs. Sam Martin, (of color.)

Slavery is prohibited by the laws of the State of New York. The evidence conduces to prove that Morrison was informed that Sam was in the city of New York soon after his arrival there. And it is contended that the failure of his owners, during a period of about three months, to make any effort to bring him away from New York, gave him a right to freedom. If so, his voluntary return to Kentucky would probably have deprived him of the right thus acquired. But, in our opinion, his stay in New York did not give him a right to freedom. He went and remained there, not with the consent of his owners, but as a fugitive slave. We are not aware of any case in which it has been held that the failure of a master, during three months or any other period, to attempt to capture a fugitive slave in a non-slaveholding State, entitles the slave to freedom. Nor do we perceive any reason to believe that Sam could have been found and captured with such facility, that a failure to make the attempt raises a presumption that he remained there with the consent of his owners.

It is also contended that Winn agreed to emancipate Sam after realizing from his services the sum paid to Morrison. If such an agreement had been made with Sam it could not be enforced. But it is not proved that Winn so agreed either with Sam or Morrison. The fact that he made the purchase for much less than Sam now appears to have been worth does not conduce to prove such an agreement, since there were other obvious causes affecting the price. Nor would Morrison's statement, that he did not consider Sam a slave, nor sell him as such, be sufficient to establish such an agreement, if conceded to be true. But the bill of sale, signed by Morrison and his wife and Mrs. Taylor, proves conclusively that they did sell him as a slave.

As Sam failed to allege that he now wishes to be placed in charge of the colonization society, to be transported to Liberia, he did not show himself entitled to any relief.

The judgment is reversed, and the cause remanded with directions to dismiss the petition.

1. A final order either terminates the action itself, decides some matter litigated by the parties, or operates to divest some right in such a manner as to put it out of the power of the courts making the order, after the expiration of the term, to place the parties in their original condition. (15 B. Mon., 48.)

2. An order of a county court refusing to qualify a person as a deputy sheriff on - motion of the sheriff, is not a final order, and no appeal lies.

3. The right of approval, and implied right of disapproval, of the appointment of a deputy by the sheriff, conferred by law on the county court, belongs to the executive and not the judicial power of the court. (3 J. J. Mar., 401.)

4. Mandamus is an appropriate remedy whereby the county court may be compelled to show cause why they refuse to approve and qualify a deputy appointed by the sheriff. (3 B. Mon., 198.) From the judgment of the circuit court, in such proceeding, an appsal lies to the Court of Appeals.

JNO. E. RECORDS, for appellant cited, Constitution of Ky., art, 6, sec. 4; Rev. Stat. chap. 91, art. 1 sec. 6.

JUDGE WILLIAMS DELIVERED THE OPINION OF THE COURT:

Jas. T. Applegate, being sheriff of Pendleton county, appointed Wm. M. Applegate his deputy, and desired the county court to qualify him as such, which the court refused to do, solely because said William was under twenty-one years of age; whereupon this appeal was prosecuted.

By section 15, Civil Code, this court has appellate jurisdiction over the final orders and judgments of all other courts of this Commonwealth, subject to the exceptions in section 16.

"A final order either terminates the action itself, decides some matter litigated by the parties, or operates to divest some right in such a manner, as to put it out of the power of the court making the order, after the expiration of the term, to place the parties in their original condition." (Maysville & Lex. R. R. Company vs. Punnett, 15 B. Mm., 48.)

The refusal of the county court to qualify this deputy did not preclude the court from doing so at a subsequent term, had the

Radford vs. Chamberlain.

court changed its mind. It is not therefore a final order over which this court has jurisdiction.

"Every sheriff may, by and with the approval of the county court, appoint his own deputy." (Sec. 6, chap. 91, vol. 2 Stant. Rev. Stat., 340.) The appointing power although vested in a court is executive and not judicial. (Taylor vs. Commonwealth, 3 J. J. Mar., 401). The right of approval, and implied right of disapproval, confered by law on the court, appropriately belongs to the executive, and not the judicial, power of the

court.

Mandamus from the circuit to the county court is an appropriate remedy whereby the county court may be compelled to show cause why they did not approve and qualify this deputy. (Day vs. the Justices of Fleming County Court, 3 B. Mon. 198.) In this kind of proceedings the sheriff on the one side, and the county court on the other, could present the causes of complaint and refusal, so that this court could adjudicate between them, after a full hearing of both parties, and direct the proper determination.

This limitation on the power of the sheriff was doubtless conferred on the court the better to protect the public interest of each county, and, before its acts are interfered with, it should be heard.

Wherefore the appeal is dismissed.

CASE 8-PETITION EQUITY-JUNE 6..

Radford vs. Chamberlain.

APPEAL FROM THE CHRISTIAN GIRCUIT COURT.

1. A decree for the sale of land, held in trust for the separate use of a married woman, is rendered void by a failure to have a report of commissioners stating the value of her estate, the annual profits thereof, and that her interest requires the sale to be made.

Radford vs. Chamberlain.

BRISTOW & PETREE, for appellant.

HARLAN & HARLAN, for appellee, cited Civil Code, secs. 539, 540; 1 Met., 284.

JUDGE BULLITT DELIVERED THE OPINION OF THE COURT:

The only question that we need to decide is, whether or not a decree for the sale of land, held in trust for the separate use of a married woman, is rendered void by a failure to have a report of commissioners stating the value of her estate, the annual profits thereof, and that her interest requires the sale to be made.

In chap. 86, art. 5, of the Revised Statutes, several regulations concerning the sale of lands and slaves of married women are followed by this provision:

"The proceedings under this article shall, in other respects, be the same as are required to procure the sale of infants' lands."

One of the provisions thus adopted and applied to proceedings for the sale of the lands of married women is in these words:

"2. Before a court shall have jurisdiction to decree a sale of infants' lands-1, three commissioners must be appointed to report, and must report under oath to the court, the net value of the infants' real and personal estate, and the anuual profits thereof, and whether the interest of the infant or idiot requires the sale to be made."

It has been repeatedly decided that, under this provision, the failure to have such a report as the statute requires renders void a decree for the sale of an infants' lands and all proceedings under it. (18 B. Mon., 782; 2 Met., 515; 3 Id., 524.) It necessarily follows that the decree and the proceedings under it, in this case, are void.

The fact that the statute, (art. 5, sec. 1. sub. sec. 7,) expressly declares that a failure to give the covenant required for the benefit of the married woman shall render the decree void, whilst it does not expressly declare that a failure to have a report of commisioners, concerning the value of her estate, &c.,