ute against harboring and concealing persons who were fugitives from labor, after notice, or full knowledge of their character. Indeed, the general definition of the word "harbor" in 1 Bouvier, 460, as quoted by the defendant's counsel-say nothing as to the authority of that work-is such as to be fully covered by the facts in this case, as stated in the record, and as found by the jury. It is, "to receive clandestinely, and without lawful authority, a person for the purpose of concealing him, so that another, having the right to the lawful custody of such person, shall be deprived of the same." There was a clandestine reception of the slaves, and without lawful authority, and a concealment of them in a covered wagon, and carrying them onward and away, so as to deprive the owner of their custody. "To harbor" is also admitted in the argument often to mean "to secrete." Such is one of the best established definitions by the best lexicographers. Yet here they were secreted, not only, as just stated, by being placed in a covered wagon, and carried to a greater distance from their master, but it was done rapidly, and in part under the shades of night. That no mistake on this point occurred at the trial is likewise manifest from the fact that the judge charged the jury, the defendant must not be considered as harboring or concealing the slaves, unless his conduct was such "as not only to show an intention to elude the vigilance of the master, but such as is calculated to attain that object. 2 McLean, C. C. 615. We shall now proceed to the points of division in respect to the motion in arrest. They are, first, whether the counts contain the necessary averments, that the slave Andrew escaped from Kentucky to Ohio. It is admitted that, this prosecution being a penal one, the declaration must bring it within the statute clearly, whether looking to its language or spirit. Dwarris on Statutes, 736; 5 Dane's Abr. 244, sec. 8; Simmons' case, 4 Wash. C. C. 397. It is not necessary to multiply authorities on so elementary a proposition. On turning to the counts, however, it will be seen that they allege the residence of the plaintiff in Kentucky, the ownership by him of these slaves, held to labor there, and their "unlawfully," and "without his consent," going from that place to Ohio, as "fugitives from labor." All these allegations combined, and not merely the going away, are a clear and sufficient averment of an escape of the slave Andrew under the first objection in arrest. If they contain sufficient matter to show an escape, it need not be alleged in the very words, ipsissimis verbis, of the statute. 1 Chit. Pl. 357; The King v. Stevens et al. 5 East, 244. The ungrammatical use of the word "was” for "were," in speaking of both slaves, is urged as an uncertainty which vitiates this part of the declaration. But no one can doubt that both are referred to, and the more especially after a verdict. As to what is thus covered by a verdict, see Garland v. Davies, 4 How. 131, and the cases there cited, and 11 Wend. 374. The second point certified under the motion necessary averments of notice that said Andrew was a fugitive from labor within the description of the act of Congress." Nor can the recovery of one of the slaves afterwards, who was thus concealed and trans-in arrest is, whether the "counts contain the ported, vary the previous fact of secreting and harboring him. That is the fifth inquiry. The answer to the sixth is involved in that to the fourth and fifth; as is an answer to the seventh in that to the first question. Because, if the notice need not come from the claimant himself, nor be in writing, it need not be preceded or accompanied by a claim, which is the seventh inquiry. A claim subsequently made must be equally valid with one before the notice, whether looking to the reason of the case or the language of the statute. ne gist of the offense consists in the con228*] cealment of another's *property, under knowledge that it belongs to another, and not in a claim being previously made and refused. That refusal might constitute a separate wrong, or be another species of evidence to prove a harboring of the slave, but it is not the offense itself, for which the penalty now sued for is imposed. We cannot doubt that they do, when the first count alleges that said Andrew was in Ohio, "a fugitive from labor, and the defendant, well knowing that said Andrew was the slave of the plaintiff, and a fugitive from labor,” etc., did harbor and conceal him. *So in respect to the third question [*229 connected with the arrest of judgment, which is, whether the averments are sufficient under the statute as to harboring the slave Andrew, the answer can be but one way. However strict the construction should be, yet the count alleges, in so many words, that the defendant did "knowingly and willfully harbor, detain, conceal, and keep said slave." Under the fourth general objection of insufficiency in the declaration, no specific point, not otherwise designated, has been called to our attention, except that all the acts alleged in the declaration are not said to be "contrary to the statute." This last expression follows the concluding portion of the count, and this expression may be necessary in a penal declaration. Lee v. Clark, 2 East, 333; 1 Gall. 259, 265, 271; 1 Chit. Pl. 358. The eighth and last question under this head seems to be an abstract proposition, and does not refer to any particular facts in the case. But if it was laid down in relation to some of them, as it must be presumed to have been in order to make it a proper subject for a division of opinion, to be reconsidered here, we are not aware of anything objectionable in it. The "overt act" spoken of was required to be one both intended and calculated to elude the master's vigilance. If so, it showed acts and de-averments alone, but the whole subject matter signs of the defendant, which in the words and spirit of the statute amount or tend directly to “harbor or conceal" the fugitive from labor. But all know, that where it is inserted at the end of a declaration or indictment, it does not, as a general rule, relate to the last preceding before alleged to constitute an offense. It is all that misconduct which is contrary to the statute, and not the concluding part of it only. It remains to consider the fifth and sixth divisions of opinion under this head. They are, whether the act of Congress under which the action is brought is repugnant either to the Constitution or the ordinance "for the government of the territory northwest of the River Ohio." in cases not enumerated specially, in respect to such legislation, as in others. That this act of Congress, then, is not repugnant to the Constitution, must be considered as among the settled adjudications of this court. This court has already, after much delibera- The last question on which a division is certion, decided that the Act of February 12th, I tified relates to the ordinance of 1787, and the 1793, was not repugnant to the Constitution. I supposed repugnancy to it of the Act of ConThe reasons for their opinion are fully ex-gress of 1793. plained by Justice Story in Prigg v. Pennsyl- The ordinance prohibited the existence of vania, 16 Peters, 611. slavery in the territory northwest of the River In coming to that conclusion they were forti-Ohio, among only its own people. Similar profied by the idea that the Constitution itself, in the clause before cited, flung its shield, for security, over such property as is in controversy in the present case, and the right to pursue and reclaim it within the limits of another State. This was only carrying out, in our confederate form of government, the clear right of every man at common law to make fresh suit and recapture of his own property within the realm. 3 Black. Com. 4. But the power by national law to pursue and regain most kinds of property, in the limits of a foreign government, is rather an act of comity than strict right; and hence, as the property in persons might not thus be recognized in some of the States in the Union, and its reclamation not be allowed through either courtesy or right, this clause was undoubtedly introduced into the Constitution, as one of its compromises, for the safety of that portion of the Union which did permit such property, and which otherwise miglit often be deprived of it entirely by its merely crossing the line of an adjoining State. 3 Madison Papers, 1569, 1589. This was thought to be too harsh a doctrine 230*] in respect to any title to property-of a friendly neighbor, not brought nor placed in another State, under its laws, by the owner himself, but escaping there against his consent, and often forthwith pursued in order to be reclaimed. The act of Congress, passed only four years after the Constitution was adopted, was therefore designed merely to render effective the guaranty of the Constitution itself; and a course of decisions since, in the courts of the States and general government, has for half a century exhibited great uniformity in favor of the validity as well as expediency of the act. 5 Serg. & R. 62; 9 Jolins. 67; 12 Wend. 311, 507; 2 Pick. 11; Baldw. C. C. 326; 4 Wash. C. C. 326; 18 Pick. 215. hibitions have from time to time been introduced into many of the old States. But this circumstance does not affect the domestic institution of slavery, as other States may choose to allow it among their people, nor impair their rights of property under it, when their slaves happen to escape to other States.. These other States, whether northwest of the River Ohio or on the eastern side of the Alleghanies, if out of the Union, would not be bound to surrender fugitives, even for crimes, it being, as before remarked, an act of comity, or imperfect obligation. Holmes v. Dennison et al. 14 Pet. 540. But while within the Union, and under the obligations of the Constitution and laws of the Union, requiring that this kind of property in citizens of other States-the right to "service or labor"-be not discharged or destroyed, they must not interfere to impair or destroy it, but, if one so held to labor escape into their *limits, should allow him to be retaken [*231 and returned to the place where he belongs. In all this there is no repugnance to the ordinance. Wherever that existed, States still maintain their own laws, as well as the ordinance, by not allowing slavery to exist among their own citizens. 4 Martin's R. 385. But in relation to inhabitants of other States, if they escape into the limits of States within the ordinance, and if the Constitution allow them, when fugitives from labor, to be reclaimed, this does not interfere with their own laws as to their own people, nor do acts of Congress interfere with them, which are rightfully passed to carry these constitutional rights into effect there, as fully as in other portions of the Union. Before concluding, it may be expected by the defendant that some notice should be taken of the argument, urging on us a disregard of the Constitution and the act of Congress in respect to this subject, on account of the supposed inexpediency and invalidity of all laws recognizing slavery or any right of property in man. While the compromises of the Constitution But that is a political question, settled by each exist, it is impossible to do justice to their re-State for itself; and the federal power over it quirements, or fulfill the duty incumbent on us towards all the members of the Union, under its provisions, without sustaining such enactments as those of the statute of 1795. is limited and regulated by the people of the States in the Constitution itself, as one of its sacred compromises, and which we possess no authority as a judicial body to modify or overrule. We do not now propose to review at length the reasoning on which this act has been pronounced constitutional. All of its provisions Whatever may be the theoretical opinions of have been found necessary to protect private any as to the expediency of some of those comrights, under the clause in the Constitution re- promises, or of the right of property in perlating to this subject, and to execute the duties sons which they recognize, this court has no imposed on the general government to aid by alternative, while they exist, but to stand by legislation in enforcing every constitutional the Constitution and laws with fidelity to their provision, whether in favor of itself or others. duties and their oaths. Their path is a This grows out of the position and nature of straight and narrow one, to go where that such a government, and is as imperative on it Constitution and the laws lead, and not to break both, by traveling without or beyond them. Let our opinion on the several points raised be certified to the Circuit Court of Ohio in conformity to these views. Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel; on consideration whereof, it is the opinion of this court 1st. That, under the fourth section of the Act of 12th February, 1793, respecting fugitives from justice, and persons escaping from the service of their master, on a charge for harboring and concealing fugitives from labor, the notice need not be in writing by the claimant or his agent, stating that such person is a fugitive from labor, under the third section of the above act, and served on the person harboring or concealing such fugitive, to make him liable to the penalty of five hundred dollars under the act. 232*] *2d. That such notice, if not in writing and served as aforesaid, may be given verbally by the claimant or his agent, to the person who harbors or conceals the fugitive, and that to charge him under the statute, a general notice to the public in a newspaper is not necessary. 3d. That clear proof of the knowledge of the defendant, by his own confession or otherwise, that he knew the colored person was a slave and fugitive from labor, though he may have acquired such knowledge from the slave himself, or otherwise, is sufficient to charge him with notice. 4th. That receiving the fugitive from labor at three o'clock in the morning, at a place in the State of Ohio, about twelve miles distant from the place in Kentucky where the fugitive was held to labor, from a certain individual, and transporting him in a closely covered wagon twelve or fourteen miles, so that the boy thereby escaped pursuit, and his services were thereby lost to his master, is a harboring or concealing of the fugitive within the statute. 5th. That a transportation under the above circumstances, though the boy should be recaptured by his master, is a harboring or concealing of him within the statute. 6th. That such a transportation, in such a wagon, whereby the services of the boy were entirely lost to his master, is a harboring of him within the statute. 7th. That a claim of the fugitive from the person harboring or concealing him need not precede or accompany the notice. 8th. That any overt act, so marked in its character as to show an intention to elude the vigilance of the master or his agent, and which is calculated to attain such an object, is a harboring of the fugitive within the statute. 9th. That the first and second counts contain the necessary averments, that Andrew, the colored man, escaped from the State of Kentucky into the State of Ohio. 10th. That said counts contain the necessary averments of notice that said Andrew was a fugitive from labor within the description of the act of Congress. 11th. That the averments in said counts, that the defendant harbored said Andrew, are sufficient. 12th. That said counts are otherwise sufficient. 13th. That the Act of Congress approved February 12th, 1793, is not repugnant to the Constitution of the United States. And, Last. That the said act is not repugnant to the ordinance of Congress adopted July, 1787, entitled, "An ordinance for the government of the territory of the United States northwest of the River Ohio." It is thereupon now here ordered and adjudged by this court, that it be so certified to the said Circuit Court of the United States for the District of Ohio. By the laws of Alabama, an administrator de bonis non, with the will annexed, is liable for assets in the hands of a former executor. Where an executor has settled what appears to be a final account, it must be a very strong case of fraud proved in such settlement, or of clear accident or mistake, to make it just to re-open and revise the account after the lapse of twenty years and the death of the parties concerned. Where a person who held land as trustee directed by his will that the whole of the property that he may die seized and possessed of, or may be in any wise belonging to him, should be sold, the executors had power to sell the land held in ti ist, as well as that belonging to the testator in his own right. The trustee, by his will, having appointed residuary legatees, must be considered as devising the trust as well as the lands to these residuary legatees, who thus became themselves trustees for the original cestui que trust. NOTE. As to effect of alienage on title to real estate, see notes to 6 L. ed. U. S. 488, 28 L. ed. U. S. 934. Executors and administrators, when personally liable. the loss of property of his intestate, occasioned An administrator cannot be made responsible for by his not bringing suit until the Act of Limita The power in the executors to sell was a power coupled with a trust. It might also be considered as a power coupled with an interest. to. The distinction between these powers adverted In order to avoid an escheat, and carry out the wishes of the testator, a court of equity will, if necessary, consider land as money, where a testator, who is a trustee, has directed the land to be sold, and will direct the proceeds to be given to the cestui que trust. Whether the executor had a power to sell coupled with a trust, or a power coupled with an interest, the residuary legatees took by devise and not by descent, although they were supposed to be also the cestuis que trust. If, therefore, they were aliens, the land did not escheat on the death of the trustee, because land taken by devise does not escheat until office found, although land cast by descent does. The testator, who held the lands as trustee, having died in South Carolina, the executor took out letters testamentary in that State, sold the lands which were in Kentucky, and then removed his residence to Alabama. He can be sued in Alabama for the proceeds of the lands, because his transactions in reference to them were not necessarily connected with the settlement of the estate under his letters testamentary. legatees. Having sold the lands and received the consideration, he must be responsible to the residuary An objection that only one executor sold (there having originally been four) cannot be sustained. Where a power is coupled with a trust, it is only necessary to show such a case, as may, in a court of equity, make an agent or trustee liable to those for whom he acts. As much strictness is not required as there would be if the power to sell were a naked one, and not coupled with an interest or trust. A power to sell, coupled either with an interest or trust, survives to the surviving executor. So, also, if all the trustees or executors in such case decline to act, except one. When a sale is made under a will, the omission to record the will does not vitiate the sale, unless recording is made necessary by a local statute. it. no evidence that he did not intend to account for Although the bill made no distinction between the two characters in which the executor acted, namely, as executor proper, and as executor having a power coupled with a trust, yet as. no objection was taken in the court below upon this ground, this court does not think that an amendment is imperatively necessary. The material facts are alleged upon which the claim rests. HESE cases TH were twice before partially brought to the notice of the court, and are reported in 1 How. 282, and 2 How. 395. They were cross appeals from the District Court of the United States for the Northern District of Alabama, sitting as a court of equity. The bill was originally filed by Samuel Taylor, the father of William, George, Eliza, and Elspet, together with his nephews, William Rainey, Alexander Rainey, and his niece, Elizabeth Rainey, against George M. Savage, executor of Samuel Savage, deceased. The object of the bill was to hold the estate of Samuel Savage responsible for certain moneys which, it was alleged, he had received during his lifetime, in his capacity of executor of William F. Taylor, a citizen of the State of South Carolina, and also for his alleged neglect of lands in Kentucky, by which they were lost. The record was very voluminous, as a great all of which was brought up to this court. mass of evidence was filed in the court below, The claim divided itself into two distinct branches, one arising from transactions in South Carolina, where William F. Taylor, the testator, died, and where letters testamentary other from transactions in the State of Kenwere taken out by Samuel Savage; and the tucky. Each of these branches will be stated separately. Sav The land being in fact sold by the executor, claiming a right to do so under the will, and the purchase money being received by him, he is responsible to the cestuis que trust for the money William F. Taylor resided in South Carolina, thus received. The reception of an additional sum, where he had been naturalized in 1796. as purchase money, by them, with a reservation of age lived with him for some time, and afterthe right to sue the executor, is not an avoid-wards continued to reside in the vicinity. In ance of the first sale by the executor. 1811, Taylor died, leaving a will, which was admitted to probate on the 11th of August, But the executor is not responsible for more money than he received, with interest, unless in case of very supine negligence or willful default. A claim for damages would also be subject to the operation of the statute of limitations. 234*] *If the executor himself did not set up a claim, as an offset, for his personal expenses, his representative cannot do it, under the circumstances of this case. The cestuis que trust residing in a foreign country, the statute of limitations did not begin to run until a demand was made upon the executor for the money. His retaining it during that time is tions opposed a bar to recovery, unless he acted in bad faith, was guilty of fraud, wilful default or gross negligence. Thomas v. White, 3 Litt. 177. Executor's estate made liable for the value of the estate of testator, sold by him without authority; and also made liable for the securities which might prove defective. Smith v. Ex'rs of Smith, 1 Desaus, 304. An executor is not liable for the acts or omissions of the master, in not taking securities, or collecting the funds, where the master has been ordered to sell the estate, collect the money and pay over to the executor. Thompson v. Wagner, 3 Desaus. 94. Executor made liable for gross neglect, in not recovering a debt, where the party became insolvent. Witherspoon v. M'Calla, 3 Desaus. 245. An administrator, paying debts out of the original order or proportion, is liable to creditors, and he is not allowed to retain, for debts due to himself, more than his proportion. Lenoir v. Winn, 4 Desaus. 65. An executor, selling on a credit the personal estate of the deceased, and not taking personal security from the purchaser, as prescribed by the order of the court of ordinary, is liable for the 1811. At the time of his death, the brother and sister of the testator, namely, Samuel Taylor and Mary Taylor, were both alive, married, and had issue. Their children ultimately became parties to this suit, and their names are in the title of the case. Samuel Taylor had two sons, namely, William and George, and two daughdebt, in case of the insolvency of the purchaser; but such insolvency must be established, before the executor's estate is made absolutely liable. Stukes v. Collins, 4 Desaus. 207. An executor ΟΙ trustee cannot purchase the trust property from his co-executor or or trustee without being liable for the profits arising from the property purchased. Case v. Abeel, 1 Paige, 393. An executor, having given his own note for a debt due by the estate, does not exempt the estate from the liability; and he may be sued in equity as executor for it. Douglas v. Fraser, 2 McCord's Ch. 111. If the administrator, on the sale of his intestate's property, take any other security than that required by the terms of the order for sale, he becomes personally responsible; and if a loss ensue, it must fall upon him. Peay v. Fleming, 2 Hill, 98. If an administrator sells leasehold property, and takes the notes of the purchaser, without other security, the administrator is liable to the next of kin, for the amount not paid by the purchaser, who has become insolvent. King v. King, 3 Johns. Ch. 552. The estate of a deceased executor, who obtained ters, namely, Eliza, who intermarried with ell, of the city of Savannah and State of William Primrose, and Elspet, who intermar- Georgia, merchant, Duncan Matheson and ried with George Porter. Mary Taylor intermarried with William Rainey, and her issue were two sons and a daughter, namely, William, Alexander, and Elizabeth. The first section of William F. Taylor's will was as follows, namely: 235*] *First. I do hereby order, will, and direct, that [on] the first day of January, first after my decease, or as near that day as can conveniently be, that the whole of the property that I may die seized and possessed of, or may in any wise belong to me, be sold on the following terms and conditions, that is to say: All the personal property on a credit of twelve months from the day of sale, purchasers giving notes of hand or bonds, with security, to the satisfaction of my executors; and all landed or real property belonging, or in any wise appertaining to me, shall be sold on a credit of one, two, and three years, by equal installments, purchasers to give bond, bearing interest from the date, with securities to the satisfaction of my executors, and, moreover, a mortgage on the premises." The second section gave a legacy to his negro woman Sylvia. The third and fourth sections fourth sections also bequeathed legacies to particular individuals. The fifth and sixth sections were as follows: h "Fifthly. I do hereby will, order, give, grant, and devise all the remainder or residue of my estate which shall be remaining, after paying the before mentioned legacies, to my dearly beloved brother, Samuel Taylor, of the parish of Drumblait and shire of Aberdeen, in Scotland, and to my beloved sister, Mary Taylor, of the same place, share and share alike, provided they shall both be alive at the time of my decease, and have issue, which issue, after their respective deaths, shall share the same equally; but if either the said Samuel Taylor or said Mary Taylor shall die without issue, then the survivor, or, if both shall be dead, the issue of the said Samuel Taylor, or Mary Taylor, whichsoever shall leave the same, shall be entitled to the whole of the said remainder or residue of my said estate, share and share alike. "And sixthly and lastly. I do hereby nominate, constitute, and appoint my friends, Samuel Savage, Esquire, of the district of Abbeville and State of South Carolina; Patrick McDow judgments for debts due to his testator's estate, and afterwards gave credit to the debtors, who Į were perfectly solvent during his lifetime, but became insolvent after his death, was held not liable to the legatee for the loss so incurred. Doud v. Sanders, Harp. Eq. 277. An executor named in a will, and who never qualified as such, but who took possession of some part of the personal property of the testator, was held, by these acts, to have elected to act as an executor, and was chargeable as executor. Van Horne v. Fonda, 5 Johns. Ch. 403. Administrator in the third degree, cannot be called to an account for the estate of the first intestate, without proof that it, in fact, came to his hands. Barbour v. Robertson, 1 Litt. 96. William Ross, of the city of Augusta and State of Georgia, merchants, executors of this my last will and testament; hereby revoking and making void all former wills and testaments, at any time by me heretofore made, and do declare this to be my last will and testament." The executors all qualified as such. No bond was given, as neither the laws of the State nor the practice of the court required a bond from an executor under a will. This narrative will treat, 1st. Of the transactions in South Carolina where all the executors acted. 2d. Of the Kentucky lands, where Savage acted alone. 1. With respect to what was done in South Carolina. On the 30th of September, 1811, an inventory and appraisement were made of the goods and chattels of the deceased. But as the amount * was not added up, it cannot properly [*236 be stated; and on the 18th of January, 1812, an additional inventory and appraisement were made, which latter amounted to $808.12. A list of notes and accounts due to the estate was also handed in by Savage, as one of the executors. Ross also fled a list of notes, bonds, and open accounts belonging to the estate, in his possession. In January, 1812, the four executors made sales of the real and personal property, amounting to $24,011.46, and returned a list thereof to the Court of Ordinary. The law at that time did not require an account of sales to be recorded. After this, McDowell did not appear, by the record, to have any further participation in the settlement of the estate. Savage, Matheson, and Ross, each filed separate accounts. Those of Matheson and Ross will be disposed of before taking up those of Savage. Matheson filed but one account, namely, on the 30th March, 1813, by which a balance was due to the executor of $281.76. Ross filed three accounts, namely: 1813, March 30th. Balance due the estate, 1814, April 4th. estate, 1815, April 4th. estate, $4,034 80 Balance due the Balance due the 6,093 63 6,299 77 actually received them; except such debts as are lost by his negligence or improper conduct. Cavendish v. Fleming, 3 Munf. 198. If, owing to the conduct of the administrator, any uncertainty exist as to the amount of the profits made by him on the purchase, he will be chargeable with the largest amount which, from the circumstances, he can be presumed to have realized. Brackenbridge v. Holland, 2 Blackf. 377. Executors de son tort are only chargeable with assets which come to their hands; they have no right, as lawful executors have, to reduce the other assets, and, therefore, are not liable for not reducing and administering them. Kinard v. Young, 2 Richardson's Eq. R. 247. If an executor or administrator brings a suit in If an executor suffers the family of his testator chancery, which, from papers in his possession, he to take possession of the property, and to convert had good reason to believe was unfounded; or any part improperly to their own use, he is liable where, by ordinary care and diligence in ascertainfor it, they being regarded as his agents. Wrighting the facts, he would have ascertained the suit v. Wright, 2 McCord, Ch. 199. to be unfounded, the court, in its discretion, may charge him with costs personally, if the estate in his hands is insufficient to pay such costs. Roosevelt v. Ellithorp, 10 Paige, 415. An executor is not to be charged with the debts due to the estate of his testator, at the time when they became due, but only at the time when he |